0120140169
08-25-2016
Michale V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michale V.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120140169
Hearing No. 520-2011-00337X
Agency No. 4B-110-0010-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 26, 2013 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Supervisor, Customer Service, at the Agency's Astoria Station in Astoria, New York.
On November 29, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment in reprisal for prior EEO activity when2:
1. on September 27, 2010, his manager told him to stop the "bullshit" and that he would never get anything from him again;
2. on an unspecified date, his job assignment was posted;
3. on an unspecified date, he was not released for detail to the Dispute Resolution team;
4. on an unspecified date, he was removed from the SIT Service Improvement Team;
5. on an unspecified date, he was denied late end supervisor hours;
6. on an unspecified date, he was denied official leave for giving his deposition;
7. on or around October 23, 2010, he was offered only 6 hours of T time to work his non-scheduled day off;
8. on or around October 22, 2010, his eTravel was not approved;
9. his T time for Pay Period 2010-23-I was not paid;
10. on an unspecified date, management initiated collection on his postal debt;
11. on November 23, 2010, he was threatened with disciplinary action for posting the Holiday Schedule;
12. he was not paid for Week 2 of Pay Period 25 and Weeks 1 and 2 of Pay Period 26, 2010 (November 27, 2010-December 17, 2010);
13. his pay salary was not at highest 17 level;
14. his Saturday non-scheduled (NS) day was taken away;
15. on September 13, 2010, his manager denied his request to be assigned to a walking route;
16. on September 27, 2010, his manager denied his request to be assigned late end supervisor hours; and
17. on April 21, 2011, the manager failed to respond to his request for reasonable accommodations and a return on Saturday and Sunday non-scheduled days off.3
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 26, 2013, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant had been diagnosed with severe anxiety, stress, insomnia, headaches and blood pressure. Complainant claimed that he has generalized anxiety disorder which is "characterized by chronic anxiety, exaggerated worry and tension, even when there is little or nothing to provoke."
The AJ noted that in regard to claim 1, the Post Office Operations Manager (POOM) had no recollection concerning Complainant's allegation that he told Complainant to stop the "bullshit" and that he would never get anything from him. POOM stated that during the relevant period Complainant "never notified me of harassment hostile work environment."
Regarding claim 2, the AJ noted that on January 2, 2010, Complainant was demoted for "conduct unbecoming of a postal manager." Thereafter, the Agency posted a job listing to fill Complainant's vacant position on March 30, 2010. By letter dated April 22, 2010, Complainant requested that the Manager, Human Resources (HR Manager) rescind the job position posting because his case was still in litigation. The AJ noted that the HR Manager stated that there was no prohibition against posting Complainant's former position because the position was vacant and the listing was posted along with other authorized vacancies. The HR Manager stated that he subsequently decided to delay awarding the subject position pending the outcome of Complainant's Merits System Protection Board appeal.
Regarding claim 3, the AJ noted that Complainant was not released for detail to the Dispute Resolution Team because Agency management had a backup at the time and that the Agency felt it was not necessary to call up Complainant.
Complainant's asserted that the POOM harassed him by not releasing him to work with the Dispute Resolution Team. The POOM stated that on December 29, 2009, he issued a letter of decision concerning Complainant's Notice of Proposed Demotion. Specifically, POOM stated that Complainant was charged with conduct unbecoming a Postal Manager when he was arrested on his way to work and "he treated two black female New York City police officers disrespectfully. His arrest was highly publicized in local newspapers and reflected poorly upon the Postal Service, particularly in the Rockaway community." Furthermore, the POOM stated that he was unaware that Complainant had applied for the detail to the Dispute Resolution Team.
Regarding claim 4, the AJ noted that Complainant and a named male comparator were removed from the SIT team due to a shortage of supervisors. The POOM stated "at that time, there was a need for supervisors in my area of responsibility. [Complainant] was needed more for running a carrier unit [than] for the SIT team." POOM further stated as the Post Office Operations Manager, he needed "to ensure that my Postmasters have adequate supervisory staff to supervise their employees."
Regarding claim 5, the POOM stated that Complainant did not submit supporting medical documentation in support of his request for late end supervisor hours. The POOM stated that Complainant's doctor "submitted a note dated 6/22/10 that [Complainant] has recovered from his earlier clinical anxiety and that he eagerly wishes to return to fully to all of his previous positions, and there are no longer any restrictions applied to his working activities."
Regarding claim 6, the POOM stated that the Agency's law department advised him not to grant administrative leave to Complainant in order for him to prepare for his deposition.
Regarding claim 7, Complainant's supervisor stated that during the relevant period, Complainant was authorized to work only 6 hours on his non-scheduled day off. The supervisor further stated "the decision comes from the Postmaster on the number of hours that are authorized. I requested 8 hours and was informed that I was to bring [Complainant] in for 6 hours only. He didn't work the 6 hours. It has happened that others are not authorized to work 8 hours, but it is not customary for them not to work 8 on their non-scheduled day."
The Postmaster stated "it is common practice to have supervisors work 6 hours instead of 8 throughout the POOMS area of responsibility depending on the day."
Regarding claim 8, the POOM stated that all of Complainant's eTravel requests were approved. The POOM further stated that Complainant "is at times impatient. [Complainant] believes that as soon as he submits his eTravel requests, that they are approve seconds later. As I have numerous other duties, all eTravel requests are approved timely."
Regarding claim 9, the POOM stated that Complainant was not paid 3 hours of T time for October 23, 2010 because he did not hit the clock correctly. The POOM stated that Complainant had access to determine whether his pay was correct "by reviewing the TACs report. He could have notified his manager the day after he worked time and wasn't paid properly. Had [Complainant] hit the clock correctly he would have been paid correctly."
Regarding claim 10, the AJ noted that Agency management initiated correction of Complainant's postal debt. The AJ also noted that according to the POOM, Complainant's supervisor was also issued a Letter of Debt for $9,000.00 due to a stamp shortage.
Regarding claim 11, the Postmaster stated that when he notified the POOM that non-scheduled employees are part of the holiday schedule, he had no problem with it. The Postmaster further stated that he was not aware that the POOM wanted to discipline Complainant for scheduled non-scheduled overtime without his authorization.
Another Supervisor, Customer Service, also Complainant's co-worker, stated that at that time the supervisor was on leave leaving him and Complainant "to run the station. The Holiday schedule was posted properly and in a timely manner, so as to avoid a grievance from the Union (NALC). I remember receiving an email from [POOM] soon after, stating that the members of management will receive discipline for using unauthorized overtime on the holiday...I do not know any knowledge of [Complainant] trying to reach [POOM] regarding this schedule, and I am not sure why he would try to attempt that in the first place. I can also state that I did not receive any written discipline for posting this Holiday schedule."
Regarding claim 12, the supervisor stated that Complainant was not paid for week 2 of Pay Period 25 and weeks 1 and 2 of Pay Period 26 because he entered the wrong leave code. Specifically, the supervisor stated "the wrong leave code was entered and [Complainant] did not get paid. But, he did get paid once the correct pay code was entered."
Regarding claim 13, the HR Manager stated that he reviewed Complainant's salary history and determined that he "was placed into the correct salary level." The HR Manager made reference to various PS Form 50's, and stated further that "the pay scale that was in place at the time of the demotion and the regulations that govern pay that is associated with a downgrade for cause."
Regarding claim 14, the AJ noted that the supervisor stated that one of Complainant's non-scheduled days was switched from Saturday to Friday. The supervisor stated that his station never had Saturday as a non-scheduled day off for supervisors. Furthermore, the supervisor stated that when Complainant was assigned to his station, he was assigned the supervisor's days off which was Sunday and Friday or Sunday and Wednesday while managers had Saturday and Sunday off.
The Postmaster stated that at the time Complainant was transferred to the Astoria Station, his non-schedule day was changed because the manager had Saturday off and having two supervisors working on Saturday "saved the Postal Service money in that the supervisor that normally works alone would not have to be [paid] an additional hours."
Regarding claims 15 and 16, the AJ noted that on June 22, 2010, Complainant's doctor recommended that Complainant "be allowed to resume all of the previous duties" and that there would "no longer any restrictions applied to his working activities." The AJ determined that based on the medical documentation, Complainant's allegation of denial of reasonable accommodation for September 13 and 27, 2010 "for a walking route and late end supervisor hours, must fail."
The Supervisor, Customer Service/Complainant's co-worker denied Complainant's allegation that he was denied late end supervisor hours by POOM. The Supervisor/Customer Service/co-worker stated that he had several conversations with Complainant and the supervisor concerning supervisor hours. Specifically, the Supervisor, Customer Service/co-worker stated "I remember specifically offering [Complainant] whatever 'tour' he wanted, because I had greater flexibility in my personal life than he did. I remember, because [POOM] always works the 'front end' (the morning tour, 5am until 1:30, or 6am until 2:30), that left the 'middle' (8am begin tour) and the 'late end' (10am begin tour) up to the two of us to work out, which we always did. For [Complainant] to now state that there was undue pressure from [POOM], or that [POOM] singled him out of this matter, as to when he would and would not work is not true."
Regarding claim 17, the AJ noted that the record contains Complainant's doctor notes subsequent to his September 2010 claims of denial of reasonable accommodation and prior to his April 21, 2011 claim for a return to Saturday and Sunday non-scheduled days off as a reasonable accommodation. Specifically, the AJ noted that in his November 4, 2010 note, Complainant's doctor stated that while Complainant had been examined and prescribed medication for his condition "he nonetheless may return to work on Monday with no restrictions."
Additionally, the AJ noted that on December 7, 2011, the doctor signed a Work Capacity Evaluation form for Complainant's Workers' Compensation claim. Therein, the doctor stated that Complainant was unable to work a full day of 8 hours and "that he was not competent to perform his usual job. It further says that Complainant has no medical restrictions but, 'based on various medical factors' he was not 'functionally able to work under [POOM]." The AJ noted in his January 24, 2011 note, the doctor stated that due to Complainant's current medical restrictions, he was unable to work and that he would be re-evaluated in one month.
The AJ determined that there is nothing regarding his doctor's submissions that states Complainant needed Saturdays and Sundays off for a medical need or as a reasonable accommodation. Therefore, the AJ stated that Complainant "has not produced evidence to support the inference that he had a medical need, or that the Agency had an obligation under the Rehabilitation Act and ADAA, to allow Complainant to 'return' to Saturday and Sunday N/S days off."
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of reprisal discrimination, even if he had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
Reasonable Accommodation
The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. � 1630.2(g); (2) he is a qualified individual pursuant to 29 C.F.R. � 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). Under the Commission's regulations, an Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would case an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p). We shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability.
Complainant has not shown that the Agency wrongfully denied him reasonable accommodation in violation of the Rehabilitation Act. We find that the AJ correctly determined that there is no evidence in the record that supports Complainant's claim that he needed Saturdays and Sundays off for a medical need or as a reasonable accommodation.
The Agency's final action implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 25, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1-17.
3 The record reflects that claims 15 - 17 were later amended to the instant formal complaint.
4 On appeal, Complainant does not challenge the January 19, 2011 revised partial dismissal of his two amended claims (Complainant alleged that he was discriminated against on the basis of reprisal for prior EEO activity when on an unspecified date, the Great Neck Postmaster was arrested and no disciplinary action was taken against her although he was placed on Emergency Placement and demoted after his arrest; and on an unspecified date, management challenged an injury sustained by him). Therefore, we have not addressed these issues in our decision.
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