0120072826
08-09-2007
Mark F. Krinke,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072826
Hearing No. 532-2006-00124X
Agency No. 4C-440-0086-06
DECISION
On May 29, 2007, complainant filed an appeal from the agency's April 27,
2007, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Bellevue Post Office facility in
Bellevue, Ohio. On March 23, 2006, complainant filed an EEO complaint
alleging that he was discriminated against on the basis of reprisal for
prior protected EEO activity when:
1. On December 1, 2005, management informed the carriers of the
requirement to complete PS Form 3996 whenever auxiliary assistance is
needed; complainant was the only employee to receive disciplinary action
for unauthorized use of overtime when he received a Notice of Suspension
on April 4, 2005;
2. On October 25, 2005, complainant was issued a seven day no time
off suspension for Failure to Maintain a Regular Work Schedule, which
was reduced to a Letter of Warning
3. On January 30, 2006, complainant was issued a seven day no time
off suspension for Unacceptable Performance: Failure to Follow Safety
Rules and Regulations;
4. On an unspecified date, after his falling accident on or about
January 9, 2006, complainant was forced to sign a limited duty assignment
that was not adhered to by management;
5. After complainant's begin time was changed to 8:30 a.m., he
missed approximately 6 weeks of safety talks;
6. On an unspecified date, he was in the breakroom and the Officer
in Charge rudely interrupted his conversation;
7. On an unspecified date, the Officer in Charge threatened to report
him to the Department of Labor if she saw him use his hand and arm;
8. On an unspecified date the Officer in Charge had him sit with
her in her office for several days with nothing to do, even though he
had a medical letter stating that he was to stay away from her;
9. On or about February 3. 2006, the Officer in Charge told him. "You
don't have anymore support in this post office anymore. You won't lose
your job, but I'll make sure you don't work here;"
10. On an unspecified date, the Officer in Charge said she had
statements from employees against him, but would not show them to him;
11. On an unspecified date the Officer in Charge came into the
emergency room and quizzed him on his medications;
12. On an unspecified date the Officer in Charge called physical
therapy to obtain his personal medical information;
13. On March 9, 2006, he was issued a fourteen day no-time-off
suspension for Improper Conduct and Insubordination.
By letter dated April 17, 2006, the agency dismissed claims (1), (6),
(7), (9), (10), (11), and (12) on the grounds that complainant was not
aggrieved by the incidents described and further, the agency dismissed
claims (1) and (2) for untimely EEO Counselor contact. The agency
accepted claims (2), (3), (4), (5), (8) and (13) for investigation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on March 13, 2007.
Upon complainant's motion, the AJ affirmed the agency's dismissal of
claims (1) and (2). The AJ reversed the agency's dismissal of claims
(6), (7), (9), (10), (11) and (12), finding that taken together, these
incidents (including claim 8) stated an overall claim of harassment
based on reprisal. On March 13, 2007, the AJ convened a hearing on
complainant's complaint and subsequently issued a decision on April
20, 2007. On April 27, 2007, the agency issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
In her decision, the AJ found that with respect to complainant's claim
of harassment, that the incidents described in claims (6) - (12), even
if true, do not rise to the level of a hostile work environment because
they were not sufficiently severe and pervasive to have the effect of
creating an intimidating, hostile, or offensive work environment. The AJ
found that the actions were isolated and trivial. With respect to claim
(5), the AJ found that complainant was not aggrieved by missing the safety
talks due to his schedule being changed. The AJ further determined that
with respect to claim (4) that complainant was not coerced into signing
a limited duty agreement and therefore was not subjected to an adverse
employment action. Rather, the AJ found the evidence showed that although
complainant assumed he had to sign the agreement, the Officer in Charge
(OIC) was willing to work with complainant to refine the terms of the
agreement until terms with which complainant agreed were achieved.
With respect to claim (3), the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Namely,
complainant suffered a slip and fall accident in which he was injured,
because he was in a hurry and failed to pay attention. Complainant, the
AJ found, did not present persuasive evidence that other employees had had
similar accidents without receiving similar discipline. Accordingly,
the AJ found that complainant did not show that the agency's actions
were motivated by reprisal for complainant's prior protected activities.
With respect to claim (13), the AJ found the undisputed evidence showed
that complainant was heard cursing and argued with his supervisor and the
OIC over direct instructions and that he did not deny that he delayed
in following orders because he "needed time to reorient" himself when
completing one task before following instructions. The AJ reasoned that
the agency acted reasonably in issuing the 14-day no-time-off suspension
under the agency's progressive discipline policy and that complainant
had not shown that the agency's actions were motivated by reprisal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
As a preliminary matter, we affirm the dismissal of claims (1) and (2)
of these two claims pursuant to 29 C.F.R. � 1614.107(a)(2). Complainant
has not shown or claimed on appeal that the AJ erred in the decision to
dismiss these two claims.
In the instant case, we find no dispute regarding the agency's awareness
of complainant's prior EEO activity. We concur with the agency that
the evidence supports the AJ's decision and that nothing in the record
shows that any of the agency's actions were motivated by reprisal.
On the contrary, the record shows that the agency's decision to issue
discipline, to modify complainant's responsibilities and day to day
schedule; to observe and correct complainant's performance were well
within the agency's supervisory responsibility and consistent with the
proper role of agency's duty to manage complainant's work.
We therefore AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 9, 2007
__________________
Date
2
0120072826
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120072826