0120080881
01-12-2010
Oscar I. Arteaga, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Oscar I. Arteaga,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120080881
Hearing No. 520-2007-00333X
Agency No. 4B028007806
DECISION
On December 12, 2007, complainant filed an appeal from the agency's
November 15, 2007 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 appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a City Carrier at the agency's Warwick Main Post Office in Warwick, Rhode
Island. The facility was scheduled to undergo mandatory route adjustments
in 2006. On February 27, 2006, the agency and the union agreed to undergo
cooperative route adjustments and adjusted all routes to be as close to
eight hours in length as possible. As part of the route adjustments,
one vacant route was eliminated. Prior to the route adjustments, the
majority of complainant's route consisted of deliveries to businesses.
The Postmaster (PM), complainant's direct supervisor (S1), the union
president, and a customer service analyst decided to split up most of
the business section of complainant's route and transferred portions
of it to three other co-workers. Complainant's route was adjusted to
include other residential customers located near his existing residential
customers to make it an eight hour route. After his route adjustment,
complainant's psychiatrist wrote three letters to the agency recommending
that he not work more than eight hours a day due to a mental condition.
On October 5, 2006, complainant and his relief supervisor (RS) had a
conversation regarding the doctor's note. Complainant refused to work
overtime citing the restrictions from his doctor to not work more than
eight hours a day. Complainant asserts that this conversation occurred
in front of other postal workers on the work floor and that his medical
note was left out in public view.
On November 20, 2006, S1 issued complainant a Letter of Warning (LOW)
for an incident in which S1 observed complainant driving with his door
open and without a seatbelt in violation of agency rules. On November 22,
2006, a customer services supervisor (S2) issued complainant a LOW for not
obeying his instructions. S2 approached complainant's delivery vehicle
while he was delivering mail to check on his progress and instructed
complainant to remain where he was. Complainant ignored S2's order
and drove off. The LOW also stated that complainant yelled at S2 on
November 1, 2006 after S2 gave him instructions.
On November 22, 2006, complainant was scheduled to leave early for
vacation. S1 instructed complainant to organize the mail so that it
would be ready for the next carrier. When complainant failed to follow
the instructions, S1 sent him to the swing room to review regulations
regarding his responsibilities as a letter carrier before he left on
leave. On December 2, 2006, complainant received another LOW. S1 stated
in the letter that complainant displayed an unwilling attitude, worked
slowly, and wasted time moving mail after being instructed to case first
class and daily mail.
On December 1, 2006, complainant requested a change of schedule so that he
could go to work earlier. S1 denied the request because of complainant's
performance issues. On December 4, 2006, complainant again requested
a schedule change so that he could leave early for an appointment.
S1 again denied the request because of complainant's poor performance.
Complainant did not finish casing the mail and instead took sick leave.
On November 24 and 30, 2006, the agency denied complainant's request
for auxiliary assistance to finish his route. On December 2, 2006,
complainant again requested auxiliary assistance because of heavy mail
flow from the holidays. This time S1 approved the request, but with a
notation which stated "[In] order to avoid problems for the PM supervisor
I am approving assistance. Carrier was instructed to case 1st class and
daily's at 7:45 AM. Carrier still requested 1.5 hrs and displayed an
uncooperative attitude."
On October 31, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of national origin (Columbian)
when:
1. On July 25. 2006, his route was adjusted.
Complainant also alleged that he was subjected to a hostile work
environment in reprisal for prior protected EEO activity:
2. On October 5, 2006, his medical restrictions were disregarded and were
discussed with his supervisor (S1) during a meeting in the presence of
other letter carriers, and his medical note was left out in plain view;
3. On November 22, 2006, S1 humiliated him and sent him to the swing
room for performance;
4. On November 20, 2006, November 22, 2006, and December 2, 2006, he
was issued Letters of Warning (LOW);
5. On December 1, and 4, 2006, his requests for temporary schedule
changes were denied;
6. On November 24 and 30, 2006, his requests for auxiliary assistance
were denied; and,
7. On December 2, 2006, his request for auxiliary assistance was approved
with notation.
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 timely
requested a hearing. Over complainant's objections, an AJ granted the
agency's August 23, 2007 motion for a decision without a hearing and
issued a decision without a hearing on November 7, 2007. As to claim (1),
the AJ found that complainant failed to introduce evidence that would
lead a trier of fact to find that the agency discriminated against him
when it readjusted his route on July 25, 2006. The AJ also found that
complainant failed to show that being moved from a business route to a
residential route amounted to an adverse employment action. Further, the
AJ found that complainant introduced no evidence that would suggest that
his national origin actually motivated the decision to change his route.
The AJ then found that even had complainant established an inference of
discrimination, the agency had articulated legitimate, nondiscriminatory
reasons for its actions; specifically, in the interest of efficiency,
and to accommodate another co-worker, the agency assigned complainant
more residential routes to avoid having him drive across town to deliver
to businesses. The AJ found that complainant had failed to produce any
evidence to suggest that the agency's proffered reasons for its actions
were not credible.
As to the remaining claims, the AJ found that complainant failed
to show sufficient evidence to establish an inference of reprisal.
As to claim (2), the AJ found that complainant failed to show that he
was harmed by the conversation with S1 about his medical condition,
that anyone overheard the conversation, or that the conversation or
placement of the note on the relief supervisor's (RS) desk constituted
reprisal. As to claim (3), the AJ found that complainant was sent to
the swing room to review agency rules regarding his responsibilities
due to his poor performance and complainant failed to dispute that he
performed poorly at his job. The AJ found that S1 treated complainant
no differently than any other employee. As to claim (4), the AJ found
that complainant failed to show that any of the three LOWs constituted
reprisal given his poor job performance and neglect of duties. As to
claim (5), the AJ found that S1 denied complainant's schedule change
requests because of complainant's poor performance and complainant failed
to show that S1's reasons were not credible. As to claim (6), the AJ
found that S1 denied complainant's request for auxiliary assistance
because he felt complainant should have completed the tasks on the
route in the allotted time. The AJ found that complainant presented no
evidence that S1's reasons were pretextual. Finally, as to claim (7),
the AJ found that the notation placed on the approval of complainant's
December 2, 2006 request for auxiliary assistance stated that complainant
was uncooperative. The AJ found that complainant failed to dispute his
uncooperativeness and failed to show that the notation was motivated by
discriminatory animus. As a result, the AJ found that complainant had
not been discriminated against or harassed as alleged.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
or reprisal-based harassment.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ incorrectly concluded that
complainant had not suffered an adverse employment action as to claim
(1). Further, complainant asserts that a genuine issue of material
fact exists as to whether the agency's reasons for adjusting his route
are pretextual. Next, complainant avers that the AJ ignored the temporal
proximity between complainant's waiver of anonymity during the complaint
process and the agency's actions. Finally, complainant contends that all
three letters of warning demonstrate retaliation because the collective
bargaining agreement calls for progressive discipline. Complainant claims
that if a reprimand was deserved, then he should have first received a
verbal warning. Accordingly, complainant requests that we reverse the
AJ's decision without a hearing and order a hearing.
In response, the agency asserts that there is no legal support that
a change in delivery addresses is sufficient to establish an adverse
employment action. The agency contends that complainant has not
presented any evidence to suggest that the adjustments to his route
were made to discriminate against him based on his national origin.
Further, the agency asserts that complainant is unable to show that any
of the subsequent actions taken by the agency were taken in retaliation
for his EEO activity, especially in light of the fact that none of the
supervisors were even aware of complainant's EEO activity at the time
of the actions in question. As a result, the agency requests that we
affirm the final order.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Disparate Treatment
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).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), PM asserts
that the Main Office was scheduled for route inspections, and that he and
the union agreed to do cooperative adjustments. Report of Investigation
(ROI), PM's Aff. at 3. PM states that he informed the carriers that
a vacant route was being eliminated which would minimize the effect
on carriers. Id. Further, he emphasizes that he worked with other
management officials to adjust the routes and that all routes were
adjusted in accordance with the rules and regulations of the agency.
Id. at 4. Complainant's former direct supervisor (DS) maintains that
complainant's route was adjusted based on the route inspection, the
route's geographic location, the proximity of routes next to his that
were either overburdened or had undertime, and line of travel issues.
ROI, DS's Aff. at 4.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). Viewing
the record in the light most favorable to complainant, we agree with the
AJ and find that complainant has presented no evidence establishing that
the agency's reasons are pretextual. At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were not the real reasons,
and that the agency acted on the basis of discriminatory animus.
Complainant failed to carry this burden.
Hostile Work Environment
To establish a claim of harassment based on race, sex, disability,
age, or reprisal, 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).
As to claim (2), PM asserts that complainant supplied medical
documentation that stated it was recommended that he not work more than
eight hours a day. ROI, PM's Aff.2 at 5 (emphasis added). PM emphasizes
that complainant was instructed that if his eight-hour restriction
was an absolute that he submit medical documentation from his doctor
indicating such. Id. PM affirms that complainant submitted the requested
documentation the next day and from that point forward, complainant was
not required to work over eight hours. Id. PM adds that the only reason
other letter carriers overheard the conversation was because complainant
became loud on the workroom floor. Id. Complainant's relief supervisor
(RS) concedes that complainant's medical note was inadvertently left
on the supervisor's desk, however he doubts anyone saw the note. ROI,
RS's Aff. at 4.
Regarding claim (3), S1 insists that he sent complainant to the swing room
because his performance casing his route was extremely inefficient and he
believed the agency would be better served by having the complainant read
his responsibilities in the employee handbook. ROI, S1's Aff. at 8.
S1 affirms that complainant displayed a lack of urgency casing the
mail and disrupted the workroom floor. Id. at 9. S1 avers that it
was complainant who made a spectacle of his assignment to the swing
room. Id. As to claim (4), S1 claims that he issued the November 20,
2006 LOW because while performing street supervision on complainant,
he observed him driving a postal vehicle without wearing a seatbelt.
ROI, S1's Aff. at 9. S1 adds that complainant called the main office
and stated that he could not finish his assignment. S1 asserts that
he issued the November 22, 2006 LOW because complainant was performing
extremely slow and continued to argue his instruction causing tension in
the office. Id. Additionally, S1 claims that complainant's performance
was the reason he issued the December 2, 2006 LOW.
Regarding claim (5), S1 states that he denied complainant's temporary
schedule change request because complainant's performance was poor and he
had to have another employee complete complainant's assignment on other
occasions. ROI, S1's Aff. at 10. S1 affirms that he saw no improvement
in complainant's performance that would justify paying more hours to
do less work. Id. As to claim (6), S1 asserts that complainant was
requesting unreasonable assistance. ROI, S1's Aff. at 10. S1 adds
that any carrier with complainant's experience and expertise should
have completed the assignment in eight hours and that he believed that
complainant deliberately brought back mail. Id. S1 avows that the
process is for carriers to request assistance as soon as the carrier is
aware that he cannot complete his route in eight hours. S1 avers that
complainant followed the procedure, but was uncooperative in curtailing
the mail to achieve the eight hour goal. Id. As to claim (7), we
agree with the AJ that complainant has failed to rebut the claim that
he was uncooperative and complainant failed to show that the notation
was motivated by his prior protected activity.
Viewing the record in the light most favorable to complainant, we agree
with the AJ and find that there is no evidence that would establish that
complainant's prior protected activity more likely than not played a part
in any of the agency's actions. Even accepting as true complainant's
allegation that the environment was hostile, the record does not support
a finding of discriminatory hostility. Accordingly, complainant has
not shown that he was subjected to reprisal-based harassment as alleged.
CONCLUSION
It is the decision of the Equal Employment Opportunity Commission
to AFFIRM the agency's final order, because the Administrative
Judge's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence 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
January 12, 2010____
Date
2
0120080881
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120080881