0120102274
09-23-2010
Michael R. Hill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Michael R. Hill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120102274
Hearing No. 450-2009-00387X
Agency No. 4G-752-0065-09
DECISION
On May 1, 2010, Complainant filed an appeal from the Agency's April 8, 2010, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge's (AJ) decision, finding that Complainant was not subjected to discrimination based on race and in reprisal for prior protected EEO activity, is supported by substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Mesquite Main Post Office in Mesquite, Texas. On February 27, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) and in reprisal for prior protected EEO activity arising under Title VII when:
1. from November 20, 2008 and ongoing, Complainant has been subjected to a hostile work environment regarding leave usage, work instructions, and threats; ordered to undergo a Fitness for Duty examination, refused permission to go to an EAP meeting, denied representation, and refused FMLA documentation; and management failed to address racially insensitive remarks and management participated in said remarks;
2. on January 8, 2009, Complainant was issued a 7-Day Suspension for failure to follow instructions;
3. on January 14, 2009, Complainant was issued a 14-Day Suspension for unsatisfactory service; and
4. on January 27, 2009, Complainant was issued a 7-Day Suspension for unsatisfactory work performance.
At the conclusion of the investigation, the Agency provided Complainant 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.
AJ's DECISION
The AJ held a hearing on March 15, 2010, at which eight witnesses testified. The AJ made factual findings regarding testimony proffered. Complainant testified that, in November 2008, a co-worker (CO-1) made a number of racial remarks regarding the then President-elect of the United States, as well as remarks pertaining to the relative intelligence of white and black people, and the religious practices of black people. Other witnesses testified to various other racial remarks made by CO-1. Complainant complained to his supervisors about the remarks. He maintained that it was only following his complaints about CO-1's comments that he began to receive discipline.
Complainant received his first 7-Day Suspension for use of unauthorized overtime. The 14-Day Suspension was issued for failure to meet minimum standards during an office count. Complainant's second 7-Day Suspension was issued for refusing to carry auxiliary mail. Complainant grieved all of the discipline. Complainant did not receive a loss of time or pay with respect to each suspension.
The AJ issued a decision on March 23, 2010. In her decision, the AJ found that Complainant had not established a prima facie case of race discrimination because he was not treated differently than similarly situated individuals outside of his protected class. The AJ did find that Complainant had established a prima facie case of retaliation in that he had engaged in prior protected EEO activity, was subsequently disciplined and that the responsible management officials had knowledge of his prior EEO activity. The AJ noted that Complainant offered no testimony with respect to his claims involving leave usage, work instructions, and threats, his claim that he was ordered to undergo a Fitness for Duty Exam,1 was refused permission to go to EAP counseling, was denied union representation and was refused FMLA documentation.
The AJ concluded that the Agency had articulated legitimate, nondiscriminatory reasons for its actions, which Complainant had not shown to be pretext for discrimination. Additionally, the AJ found that Complainant had not shown that he had been harassed or subjected to a hostile work environment based on his race or in retaliation because the racial comments at issue were not severe or pervasive.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that the AJ's reliance on the testimony of the Agency witnesses as to the reasons for the issuance of the suspensions was misplaced. The Agency opposed Complainant's appeal and urged the Commission to affirm the final order.
ANALYSIS AND FINDINGS
At the outset, we note that because Complainant offered no testimony at the hearing concerning that portion of claim (1) involving leave usage, work instructions, threats, being ordered to undergo a Fitness for Duty Exam, being refused permission to go to EAP counseling, being denied union representation and being refused FMLA documentation, and did not specifically raise these matters on appeal, we will exercise our discretion and not address these issues in this decision.2 The Agency's final order finding no discrimination is AFFIRMED with respect to these matters.
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, at � VI.B. (November 9, 1999).
Disparate Treatment - Race and Reprisal
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of discrimination based on race by demonstrating that (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of his protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). The record supports the AJ's finding that Complainant has not shown that he was treated differently than similarly situated individuals of different races with respect to the issuance of the suspensions, i.e., claims (2), (3) and (4).
We also find that there is substantial evidence in the record to support the AJ's determination that Complainant established a prima facie case of reprisal discrimination. Complainant can establish a prima facie case of reprisal by showing that: (1) he engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he 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). The issuance of the suspensions occurred close in time to when Complainant claimed that he complained to Agency management about the racial remarks made by CO-1.
However, the Agency offered legitimate, nondiscriminatory reasons for the issuance of the suspensions, which Complainant has not proven to be pretext for discrimination. Therefore, we find that the AJ's conclusion that he was not discriminated against based on race or reprisal is supported by the record.
Harassment
Finally, to the extent that Complainant also alleges that he was subjected to a hostile work environment with respect to claims (2), (3) and (4) , we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
Additionally, we affirm the AJ's conclusion that the three remarks made by CO-1 were not severe or pervasive such that a hostile work environment based on race was created. The Commission has repeatedly found that unless the conduct is very severe, a group of isolated incidents will not be regarded as creating a hostile work environment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996). We caution the Agency, however, that the behavior of CO-1 has the potential to create such a hostile work environment, and it would be advisable to counsel CO-1 on the inappropriateness of his remarks in the workplace environment.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's factual findings are supported by substantial evidence in the record. We discern no basis to disturb the AJ's decision. Accordingly, after a careful review of the evidence of record, including arguments and evidence not specifically addressed in this decision, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
__9/23/10________________
Date
1 There is no evidence in the file that Complainant actually underwent a Fitness for Duty Exam. He also did not allege discrimination based on disability.
2 The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999).
??
??
??
??
2
0120102274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102274