0120081562
06-09-2009
Michael S. Linardy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael S. Linardy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081562
Hearing No. 430-2007-00318X
Agency No. 1K-284-0002-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity
Commission (EEOC or Commission) accepts complainant's appeal from the
agency's January 15, 2008 final decision 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. Complainant alleged that the agency
discriminated against him on the bases of race/color (Caucasian/white)
and sex (male) when:
1. from July 26, 2006 through October 13, 2006, he was chastised and
harassed about his work performance and management attempted to fire him,
and
2. on October 13, 2006, he was issued a 14 day suspension for
improper conduct.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ dismissed complainant's request
for a hearing for failure to submit a pre-hearing report or participate
in a pre-hearing conference, as ordered.1 The agency then issued a
final decision finding no discrimination, which complainant appeals.
Complainant volunteered to be a runner, but ceased doing so on July
21, 2006. According to co-worker S.G., a runner is a hard physical
non-stop job involving the staging, passing, and running of mail.
Complainant claimed that management starting harassing him on July 26,
2006, because he stepped down from being a runner.
Complainant received a notice of 14 day suspension dated August 4,
2008, for the charge of improper conduct arising on July 28, 2006.
According to the notice, complainant yelled and cursed at his acting
supervisor M.M., did not stop even after being told repeatedly to do so
by her, kicked a lower door panel and hit the top of his sorting machine,
and was jerking and wild eyed. The charges tracked statements made by
acting supervisor M.M., who also wrote it felt like she was going to
be attacked.2 S.G., complainant's work partner who was on the sorting
machine with him, made an unsigned statement contradicting much of
the acting supervisor's account, including writing he did not kick
the machine that he was acting normally. However, she stated there
was a confrontation between the acting supervisor and complainant,
that complainant forcefully said to S.G. after he stopped working as
a runner "management has been fucking asses to us" and he then got
up and walked and down to the back of the machine yelling "LALALA."
Another casual employee said complainant terminated the conversation
with the acting supervisor by saying he does not need this bullshit.
Affidavit A, page 24. The notice of suspension noted that complainant
refused to cooperate with a management investigation of the incident.
This was supported by the record.
Complainant received another notice of suspension for 14 days dated
October 13, 2006, for the charge of improper conduct arising on September
15, 2006. The notice charged the following. Complainant, who was
working with a casual employee on a sorting machine, kept hitting the
emergency stop. The acting MDO released it and told the casual to
start the machine. Complainant than hit the emergency stop again,
and when the acting MDO released it, complainant demanded in a loud
voice to know what the "hell" she was doing, citing a safety hazard,
and saying the casual did not know what the "fuck" she was doing.
While the acting MDO was assisting in processing mail at the machine,
complainant hit the emergency stop again, the acting MDO told complainant
don't do that, but he hit it again and asked the acting MDO what the
"hell" she was going to do. Complainant got into the acting MDO's face
and she asked that he back away. Complainant's face was red, his mouth
was balled up, and his body language was threatening. Complainant then
said he was tired of this "shit" and ended up going to the plant manager.
While the acting MDO was explaining what happened to the plant manager,
complainant, who was initially in an adjacent room, shouted that the
acting MDO was lying, cursed, and said she harassed him daily.
The charges tracked the statement of the acting MDO. Others corroborated
her account. Complainant admitted to hitting the emergency stop twice,
stated the acting MDO yelled at him not to hit it again, and acknowledged
he said it was a safety violation to have a single person running the
sorting machine without mail trays, labels, and equipment. Complainant
denied hitting the emergency stop again, denied yelling by machine, denied
cussing; and stated the acting MDO got into his face at the machine and
that they were both yelling by the plant manager and he called her liar.
He acknowledged that after he left the machine and before he got to
the area of the plant manager, he was so upset he was shaking, and that
supervisor of distribution operations (SDO) M.L. kept telling him to calm
down. Complainant submitted a voice recording he took that he identified
as the confrontation at the machine. It appears to be a small excerpt.
In the recording, complainant protests in an excited voice by pointedly
and repeatedly asking where are the trays and saying several times get out
of my face. A female voice responds that he better move out of her way.
Complainant does not curse in the recording.
The casual who was working at the sorting machine stated that she
was running it alone, and complainant hit the emergency stop twice.
She stated that when the acting MDO told complainant not to hit the
emergency stop again, he rose up and got loud and into the acting MDO's
face like he wanted to fight her. The casual wrote that the acting MDO
told complainant to get out of her face, but complainant continued to be
loud and acted like he did not care and wanted to fight. SDO M.L. stated
that when she was by the plant manager complainant was yelling and said
he was tired of this "bullshit." The plant manager indicated that the
acting MDO gave him an account of what occurred at the machine, i.e.,
he kept hitting the emergency stop, and when he was told to stop he
went ballistic with her, yelling, screaming, and cussing. He wrote
that while the acting MDO was talking to her, complainant became very
loud and obnoxious, yelled that she was harassing him, and when he
told complainant he needed to sit down, quit yelling, and stop cussing
complainant continued and when he repeated his request complainant just
got louder.
In a December 1, 2006, grievance settlement, the above two suspensions
were combined and reduced to a seven day paper suspension to be expunged
within six months if there was no further discipline.
Complainant contends he was subjected to other harassing incidents.
Some examples, with related information, follow. In her July 31, 2006,
statement describing the alleged actions giving rise to the first
suspension, acting supervisor M.M. wrote that she knew complainant
since 1994, and he has always had a problem with management, especially
blacks and women. On July 28, 2006, M.M. requested that complainant be
removed for the conduct giving rise to the first suspension. She wrote
that complainant threatened violence in the past against others, and had
past unspecified infractions with the acting MDO and an SDO. On or about
September 16, 2006, the acting MDO filed criminal assault charges with
the State of North Carolina, Cumberland County for complainant's alleged
actions the previous day. The assault charge specified that complainant
charging up to the acting MDO with body language and movements causing her
to fear being stuck. Further, on September 26, 2006, agency management
submitted a request that complainant be removed for his alleged actions
on September 15, 2006. Complainant contended that on August 11, 2006,
a casual employee said she was told by the acting MDO not to talk to him
or his work partner. Complainant also detailed incidents where managers
treated him in a discourteous and angry fashion.
In finding no discrimination, the FAD found some incidents did not amount
to harassment, and some agency actions were warranted. On appeal,
complainant argues that the acting MDO got into his face and harassed
him on September 15, 2006, and that the recording he submitted supports
this. He argues that he was singled out based on his race and sex with
the criminal charges. He points to acting supervisor M.M.'s statement
referencing his having a history of problems with management, especially
blacks and women, and comments on threats of violence and past behavior
are without justification and examples. He points to discrepancies
in statements, and argues that the acting MDO should not be believed.
In opposition to the appeal, the agency argues that the FAD should be
affirmed.
We find that complainant has not established harassment or discrimination.
Complainant has not shown that the charges which gave rise to the
two 14 day suspensions and criminal charge, the most significant
harassment claims, were discriminatory. Complainant failed to show
they were motivated by animus rather than his actions. The first
suspension was supported by the statements of acting supervisor M.M.,
with aspects corroborated by the statement of complainant's work partner.
Complainant has not shown, by a preponderance of the evidence, that his
version of events should be believed over M.M.'s version of events.
We are sympathetic to complainant's argument that we should not rely on
the statements of the acting MDO. Ella Williams v. United States Postal
Service, MSPB No. DC-0752-07-0738-I-1, 2007 WL 4442280 (November 28,
2007), a Merit Systems Protection Board (MSPB) AJ sustained her June
9, 2007, termination for (1) creating unauthorized payroll deductions
from the pay of two casual employees who lived in her home for rent,
(2) using postal employees on agency time to run her errands, and (3)
manipulating the time and attendance system to pay an employee for
work hours not worked. In so doing, the MSPB AJ found the acting MDO's
testimony justifying or denying such actions, and attacking witnesses,
wholly incredible.
However, the MDO's statements on the charges giving rise to the second 14
day suspension are corroborated by the statements of a number of other
witnesses. Record statements indicate a pattern where once complainant
gets angry, his temper gets away from him and he does not stop being
disruptive even after being told to do so by managers. This pattern
can be found in the statements of acting manager M.M., the acting MDO,
the casual employee who worked with complainant at the sorting machine on
September 15, 2006, and the plant manager. They indicate this occurred
a total of three times on July 26, 2006 and September 15, 2006. More
than one person was frightened by complainant once he lost his temper.
Complainant himself stated that he got so upset on September 15, 2006,
he was shaking. The recording complainant submits does not establish
that things occurred as he claims. It appears to be only a small excerpt,
and in it complainant speaks in an excited voice. Further, a female voice
tells complainant to move out of her way, suggesting he was blocking her.
We take complainant's point that not all the events on July 28, 2006,
and September 15, 2006, occurred as witnesses stated. For example,
it does not appear that complainant hit the emergency stop after being
explicitly told not to do so by the acting MDO, and he did not cuss as
much as claimed. Nevertheless, the charges contain enough evidentiary
support that complainant has failed to show they were motivated by animus
rather than his actions.
While the agency contemplated removing complainant for the events on
July 28, 2006, and September 15, 2006, it decided to suspend him instead.
Given what occurred, in the absence of evidence of disparate treatment in
the record, we don't find such contemplation suggests discrimination.
Acting supervisor M.M. opining that complainant has a problem with
management, especially blacks and women in her statement giving rise
to the first suspension, is not harassing. It appears this statement
was made in the context of a management investigation of the events
of July 28, 2006, and the record does not show bad faith on her part,
albeit complainant disagrees. The same is true of her statement that
complainant has made threats in the past. Further, the record contains
enough evidentiary support that complainant acted in a threatening
manner on September 15, 2006, that he has failed to show the acting
MDO was motivated by animus rather than his actions when she filed
criminal charges. Complainant has not otherwise shown discriminatory
harassment.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the EEOC
to affirm the agency's final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
June 9, 2009
__________________
Date
1 On appeal, complainant writes that he withdrew his request for
a hearing.
2 M.R., a casual employee, made a statement corroborating part of
the account of the acting supervisor. We have not considered this
statement. There is evidence in the record that M.R. was living with
the former acting manager of distribution operations (MDO), said she was
pressured to make a supporting statement by the MDO, and was conflicted
about it. Unsigned statements of complainant and S.G., Affidavit A,
pages 29, 38. In Ella Williams v. United States Postal Service, MSPB
No. DC-0752-07-0738-I-1, 2007 WL 4442280 (November 28, 2007), a Merit
Systems Protection Board (MSPB) AJ favorably recited testimony that
M.R. lived in the MDO's home and was fearful and under her influence.
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0120081562
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120081562