0120151945
04-27-2017
Norris D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Norris D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120151945
Hearing No. 510-2014-00419
Agency No. 1G321003713
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 10, 2015 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electronic Technician at the Agency's Jacksonville Postal and Distribution Center facility in Jacksonville, Florida.
On September 24, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when:
1. On July 17, 2013, management instructed Complainant and two other African-American co-workers to clean the battery room; and
2. On July 18, 2013, after Complainant submitted a PS Form 1767, Report of Hazard, Unsafe Condition or Practice, the form was returned to him incomplete, without a Hazard Control Number assigned by the Safety Officer.
The Agency dismissed the complaint. Complainant appealed and we reversed the dismissal and remanded the matter for investigation in our decision in Complainant v. Postmaster General, EEOC Appeal No. 0120140626 (April 1, 2014). After the remand and the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation.
Claim 1 - Instructed to clean the battery room
The undisputed record showed that Complainant was a Level 10 Electronic Technician on Tour 1. The work hours for Tour 1 employees are 11:30 PM to 8:00 AM. Complainant reported to the Supervisor, Maintenance Operations on Tour 1. Prior to the end of his shift on the morning of July 17, 2013, Complainant reported to the Supervisor that the battery room was a mess, lacked ventilation, had a sulfuric odor and unsafe. His supervisor sent an email to the maintenance supervisors on Tour 3, asking them to correct the safety issues. The issues were not addressed by the supervisors on Tours 2 or 3.
When Complainant report to work at 11:30 PM, his Supervisor instructed Complainant and two other employees to clean the battery room. Complainant's Supervisor determined that the condition of the battery room was a safety hazard, which needed immediate attention. Two other employees, who were lower-level Maintenance Mechanics, were also instructed to clean the battery room, along with Complainant. All were African-American. Complainant had "worked the battery room route previously" while he was assigned to "Mail Processing Equipment (MPE) on Tour 3," seven years before. The Supervisor averred that he wanted Complainant to assist and direct the two other employees. Complainant's Electronic Technician position description includes providing on-the-job training to lower level maintenance employees. Complainant disputes that he had been trained, or had the knowledge and experience needed, to clean up a toxic environment.
Complainant told the supervisor that he considered the room a hazard and that he did not want to go into the battery room. After the Supervisor instructed him to clean up the room, Complainant filled out a PS Form 1767, Report of Hazard, Unsafe Condition or Practice and submitted the form to the Supervisor on July 18, 2013. Complainant then put on protective shields and assisted with the clean-up.
Claim 2 - Absence of a hazard control number
On July 18, 2013, at approximately 4:00 AM, the Supervisor gave Complainant the blue copy of the PS Form 1767, with all areas signed by the Supervisor, but the PS Form 1767 did not contain a Hazard Control Number assigned by the Safety Officer. Complainant maintained that when a white employee reported a previous similar situation two years earlier, the white employee was not required to then clean the battery room.
Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
While the matter was pending before the Administrative Judge, the Agency submitted a motion for summary judgment. Complainant did not file a response. After Complainant did not object to the Agency's motion, the AJ assigned to the case granted the Agency's December 10, 2014, motion for a decision without a hearing.
The AJ found that the Agency articulated legitimate reasons for its action because a hazard had been reported and needed to be remedied. The AJ also reasoned that there was no established policy or practice that required the Supervisor to return a copy of the form with a Hazard Control Number.
The AJ found that "Complainant has not come forward with sufficient independent or probative evidence tending to show that the Agency's articulated explanations in these matters are unworthy of belief" or sufficient to cast a doubt or raise a question of material fact with respect to the employment actions at bar. The AJ entered judgment in favor of the Agency.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant disputes the credibility of the Declaration of the Supervisor with regard to what Complainant was told to do, whether the Supervisor actually assisted in the clean-up and the timing and sequence of events. He also raises new issues, including the denial of his Workers Compensation Claim and that he was bypassed for overtime.
In response, the Agency argued that Complainant has not presented any new evidence of a genuine issue of material fact and it is inappropriate to include new issues during an appeal. The Agency asks that its decision be sustained.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
First, we find that it was procedurally appropriate for the AJ to have issued a decision without a hearing on this record, because the record has been adequately developed for summary disposition. In addition, Complainant did not submit an opposition to the Agency's motion.
Disparate Treatment: Terms and Conditions - Assignments.
Section 717 of Title VII states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . race." 42 U.S.C. Section 2000e-16(a).
Here, Complainant alleges that the Agency subjected him to race discrimination and retaliation when it treated him differently than other electronic technicians, because he is African-American and because he had a prior successful grievance against the supervisor. We note that the record includes a statement, dated March 2014, to Senior Plant Manager from a number of African-American employees, including Complainant, who claim that they are being subjected to a hostile work environment on the basis of race. Specifically, it states that "minority employees within the Maintenance Department" do not receive equal opportunity "with regard to training, promotions and assignments." The record, however, does not show that the subject 2013 cleaning task was assigned to Complainant because of his race. Even assuming for purposes of analysis that he established the elements of his case, the Agency provided a legitimate, non-discriminatory reason for assigning Complainant to clean up the battery room.
In order to successfully oppose a decision by summary judgment, 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.
With regard to the first claim, the record appears to be undisputed with regard to the fact that the battery room needed to be cleaned, that Complainant had experience in that area, and that he was instructed by his supervisor to clean the battery room. Further, there is no evidence that the job in question should have been performed only by others. Neither party has offered evidence of the existence of a viable alternative to having Complainant assist with the clean-up. Moreover, that issue is not material to the question at issue. As to the issue of whether this assignment was race-based or due to retaliation, we agree that there was insufficient evidence to raise a genuine issue of material fact with regard to these two claims, given the substantive legal and evidentiary standards that apply to the case.
With regard to his second claim, the evidence was undisputed that the Supervisor had not placed a safety number on the reports of any employees, regardless of their race or prior EEO activity. It was also undisputed that Complainant's reporting of a safety hazard was transmitted to the appropriate officials for follow-up, and the Supervisor ordered the clean-up when the hazard had not been addressed on the other tours.
Consequently, we find that the AJ's decision was appropriate.
CONCLUSION
Accordingly, we AFFIRM the Final Order.
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 tends 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
April 27, 2017
__________________
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.
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