0120081522
08-03-2009
Norman Whittington, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Norman Whittington, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081522
Hearing No. 490-2007-00108X
Agency No. 1H-374-0006-07
DECISION
On February 4, 2008, complainant filed an appeal from the agency's January
7, 2008 final action 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. and 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 action.
At the time of events giving rise to this complaint, complainant worked
as a full-time Laborer Custodial at the agency's facility in Memphis,
Tennessee.
On December 15, 2006, complainant filed an EEO complaint wherein he
claimed that he was discriminated against on the bases of race (Black),
disability (knee, feet, diabetic), and in reprisal for his previous EEO
activity under Title VII and the Rehabilitation Act when:
1. Complainant was subjected to ongoing harassment in that on September
27, 2006, and other unspecified dates, he was given an investigative
interview almost every two weeks and his Family Medical Leave Act rights
were violated.
2. On September 29, 2006, complainant was issued a Letter of Warning
charging him with failure to follow instructions.
3. On October 11, 2006, complainant was issued a Letter of Warning
charging him with failure to maintain regular attendance.
4. On November 7, 2006, complainant was issued a Notice of 7-Day
Suspension charging him with failure to follow instructions.
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 requested a
hearing but subsequently withdrew his request. Consequently, the agency
issued a final action pursuant to 29 C.F.R. � 1614.110(b).
The agency determined that complainant failed to prove that he was
subjected to discrimination as alleged. With regard to the investigative
interviews referenced in claim (1), the agency stated that investigative
interviews were conducted for the discipline addressed in the other
claims. As to complainant's Family Medical Leave Act rights, the
agency stated that his request for FMLA leave was approved. The agency
stated with regard to claim (2) that the Supervisor verbally instructed
complainant to perform several tasks, which he did not complete. The
agency noted that complainant stated that he did not have time to perform
these duties and that he was not given a written work order. According to
the agency, complainant was subsequently issued a Letter of Warning for
failure to follow instructions. As for claim (3), the agency stated
that complainant was issued a Letter of Warning based on his failure
to maintain regular attendance due to three instances of reporting
late during the time period of April 21, 2006 through September 23,
2006. The agency noted that complainant acknowledged that he was late on
the relevant dates but that he provided an explanation as to his need to
report after the scheduled time, and said he believed management went back
too far in time in considering these absences. With respect to claim (4),
the agency stated that the seven-day suspension was issued to complainant
after management found him in his vehicle on the agency parking lot when
he was supposed to be in his work area. The agency noted that complainant
claimed that he had gone to his vehicle to retrieve medication.
The agency determined that complainant failed to establish that he is
a person with a disability. The agency noted that complainant has not
provided information pertaining to his alleged hearing, diabetic, or
hypertension conditions and that the only information on file pertains
to his arthritis condition. The agency stated that there is no evidence
that complainant is substantially limited in any major life activity.
According to the agency, complainant stated that his condition did
not impact any major life activity, but that his ability to work may
be impacted when he has a gout arthritis episode. The agency noted
with regard to claims (2) and (3) that complainant did not believe his
medical condition or his race were factors in the issuance of either
Letter of Warning. As to claim (4), complainant identified a comparison
who was issued a Letter of Warning for failure to follow instructions
in contrast to the Suspension that complainant received. The agency
determined that this individual was not similarly situated to complainant
as complainant's corrective action was more severe due to the fact he had
a prior disciplinary action in the form of a Letter of Warning for the
same category of offense. The agency determined that even if complainant
had shown that he is a person with a disability, he nevertheless failed
to establish a prima facie case of disability or race discrimination
with regard to the two Letters of Warning or the Suspension.
With regard to complainant's claim of reprisal, the agency determined
that complainant failed to establish a prima facie case as to claims 2
- 4. The agency stated that complainant failed to show that the agency
officials who issued the Letters of Warning were aware that he had
previously engaged in EEO activity. As to the suspension, the agency
determined that complainant could not establish a causal connection
by close temporal proximity as the prior EEO complaints were filed in
January and September 2005.
The agency determined that complainant failed to establish that a
reasonable person would have found the three investigative interviews
constituted duress. The agency noted during each interview complainant
was accompanied by a representative, he personally elected not to provide
any information during one interview, and it appears that particular
meeting was of relatively short duration and was not contentious. The
agency stated that complainant failed to name any similarly situated
individuals who were or were not given investigative interviews. As to
the alleged harassment in terms of the violation of complainant's FMLA
rights when he had a diabetic attack, the agency noted that complainant's
FMLA leave for October 19, 2006, was granted.
The agency stated that the September 2006 Letter of Warning
was issued because complainant failed to follow the Supervisor's
instructions. According to the agency, complainant was told on September
9, 2006, at 4:40 AM and again at 6:05 AM, to vacuum the rugs in front of
the elevator in the lobby and on the second floor, and to pull the trash
from the second floor restroom, but that he failed to do so. As to
the Letter of Warning issued on October 11, 2006, the agency stated
that: complainant had three unscheduled absences from April 21, 2006
through September 23, 2006; on April 21, 2006, he was late .30 hours; on
September 1, 2006, complainant was late 1.71 hours; and on September 23,
2006, complainant was late .62 hours. With regard to the Suspension, the
agency stated that it was issued for failure to follow instructions as
complainant had left his appointed place of work without authorization.
The agency reasoned that by not making the Supervisor aware of his
whereabouts, complainant created an unsafe working condition. The
agency stated that this level of corrective action was issued because
complainant previously had been issued two Letters of Warning, one of
which was for failure to follow instructions. The agency noted that in
2004, a memorandum was issued to all employees which reminded everyone
that absences from their work area required permission from their
Supervisor. The agency stated that each of the investigative interviews
was conducted based on the aforementioned actions that complainant
had allegedly committed. The agency determined that it articulated
legitimate, nondiscriminatory reasons for the relevant actions that
it undertook.
With regard to the Letter of Warning issued for failure to follow
instructions, complainant argued that the Supervisor did not acknowledge
his request for a work order. Complainant stated that he was overwhelmed
with his existing work and never received the work order instructions on
how to do the assignment and where to get the equipment from because he
had never done work in the area. As for the Letter of Warning issued
for failure to maintain regular attendance, complainant explained that
the absences resulted from a dead battery, oversleeping from taking a new
medication, and a flat tire. Complainant further claims that management
is only to go back 90 days on attendance matters and that he was being
singled out as management was going back six months. With respect to
the suspension, complainant stated that the suspension should not have
been issued because he was too ill to notify his Supervisor and that he
went to his vehicle for his diabetes medication.
The agency determined the complaint failed to establish pretext with
regard to any of the alleged claims. As for the initial Letter of Warning,
the agency noted that even if complainant's account is true, it does not
establish that he followed his Supervisor's instructions or that the
Supervisor's explanation is untrue. With regard to the second Letter
of Warning, the agency asserted that even if complainant's explanations
are true, this does not establish that management's explanations are
untrue, as complainant still incurred unscheduled absences on the dates
in question. The agency further stated that complainant offered no
documentary support for his contention that management is only to go
back 90 days on attendance matters. With respect to the Suspension,
the agency stated that complainant was observed asleep in his car and
although complainant claimed that he had passed out, management was
able to rouse him. Furthermore, the agency stated that complainant
made no reference at that time to the medication he had allegedly gone
to retrieve. Complainant filed the instant appeal subsequent to his
receipt of the agency's final action.
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
To establish a claim of harassment, complainant must show that: (1) he
is a member of the statutorily protected class; (2) he was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). Further, the incidents must have been "sufficiently severe
and pervasive to alter the conditions of complainant's employment and
create an abusive working environment." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,
Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor,
complainant must also show that there is a basis for imputing liability
to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village
Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68
(2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999).
Under this analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) he is an "individual with a disability"; (2)
he is "qualified" for the position held or desired; (3) he was subjected
to an adverse employment action; and (4) the circumstances surrounding
the adverse action give rise to an inference of discrimination.
Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy his burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Initially, we will assume, arguendo, that complainant established a
prima facie case under the alleged bases.1 We find that there is no
evidence to support complainant's contention that the investigative
interviews constituted harassment. The investigative interviews were
undertaken pursuant to a review of the alleged offenses that were
subsequently addressed by either Letters of Warning or a Suspension.
There has been no showing made that it was unreasonable to perform
the investigative interviews or that they were conducted in a manner
suggesting harassment of complainant. As for complainant's claim that
his FMLA rights were violated, complainant has not submitted evidence to
refute the agency's position that his request for FMLA leave for October
19, 2006 was approved.
With regard to the initial Letter of Warning referenced in claim (2),
we find that the agency's explanation that complainant failed to follow
instructions and perform a work assignment constituted a legitimate,
nondiscriminatory reason for issuing him a Letter of Warning.
Complainant's position that he requested but did not receive a work
order for the assignment does not refute the fact that complainant
was instructed by the Supervisor to perform the work. We find that
complainant has not established that the agency's explanation for the
Letter of Warning was pretext for discrimination under any of the alleged
bases.
As for the Letter of Warning addressed in claim (3), we find that the
agency's explanation that complainant was late on three occasions during
the time period of April 21, 2006 - September 23, 2006, and thus failed
to maintain regular attendance was a legitimate, nondiscriminatory reason
for the issuance of the Letter of Warning. The arguments advanced by
complainant regarding the reasons he was late and his claim that the
agency should not go back in time beyond 90 days for attendance-related
matters does not refute the agency's position that complainant failed to
maintain regular attendance. Complainant has not shown that similarly
situated individuals were treated differently. Therefore, we find that
complainant failed to establish that he was discriminated against under
any of the alleged bases.
With regard to the Suspension, the agency specified that complainant
failed to follow instructions as he left his appointed place of
work without authorization. The agency noted that this corrective
action was issued at this level because complainant had recently been
issued two prior Letters of Warning, one of which was for failure to
follow instructions. We find that the agency articulated a legitimate,
nondiscriminatory reason for issuing the Suspension. Complainant claimed
that he left the work area without informing the Supervisor because he
was too sick to do so as he needed to retrieve his diabetes medication.
The record indicates that complainant did not comply with the memorandum
requiring that employees obtain permission from their Supervisor before
leaving the work area. Further, complainant did not show that he sought
permission to retrieve medication, that he needed the medication, or
that he informed the agency at the time (including the time after he
was discovered by the agency to have left the work area) why he left the
work area. We find that complainant's contentions do not establish that
the issuance of the Suspension reflected discriminatory intent under
any of the alleged bases.
The agency's final action finding no discrimination is AFFIRMED.
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
August 3, 2009
__________________
Date
1 We do not decide whether complainant was an individual with a
disability.
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2
0120081522
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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