0120090189
07-23-2009
Peter D. Blair, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Peter D. Blair,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090189
Hearing No. 480200700575X
Agency No. 4F920005607
DECISION
On October 6, 2008, complainant filed an appeal from the agency's
September 4, 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
In February 2006, complainant was placed on extended Administrative
Leave, and was required to call the Labor Relations Office prior to 1:30
p.m. every day that he was scheduled to work. Complainant remained on
Administrative Leave at all times relevant to this complaint.
Complainant was originally assigned to the Computerized Forwarding System
(CFS) facility in Midway, California, on the Tour 3 shift, prior to its
closure in November 2006. As a result of the closure, complainant was
reassigned as a Mail Processing Clerk, PS-05, at the Point Loma Station
in San Diego, California.
During the transition period from the CFS facility to the Point
Loma Station, employees were placed on Administrative Leave and
were required to call their supervisors to check in daily prior to
1:30 p.m. On December 1 and 2, 2006, complainant failed to call his
supervisor and instead checked in via facsimile, despite the supervisor
telling complainant that a facsimile is not a proper way to check in.
Complainant's supervisor threatened to charge him Absent Without
Leave (AWOL) for those days, but ultimately allowed him to remain on
Administrative Leave.
After complainant's reassignment to the Point Loma Station, he no longer
received the higher Tour 3 night-differential pay, and as a result his
gross pay was less. Complainant's supervisor stated that complainant's
reassignment resulted in him no longer being on a Tour 3 schedule, and
that his new schedule was the hours of 6:30 a.m. to 3:00 p.m. With those
new hours, complainant could not receive any night-differential pay,
per the union agreement.
On April 7, 2007, complainant called the Labor Relations Office at
8:15 p.m., instead of prior to 1:30 p.m. as required. As a result,
complainant's supervisor placed complainant on AWOL. Complainant
subsequently requested annual leave for that time, but his request was
denied.
On March 29, 2007, complainant filed a formal EEO complaint alleging that
he had been subjected to discrimination and harassment in reprisal for
prior protected EEO activity when:
1. On an undisclosed date, complainant did not receive reimbursement
for a target pistol that he voluntarily surrendered to the agency;
2. As of December 1, 2006, he was deprived of Tour 3 night-differential
pay;
3. On December 1 and 2, 2006, he was not granted back pay for
Administrative Leave, and his gross pay while on Administrative Leave
had fluctuated and/or diminished; and
4. On April 7, 2007, he was charged Absent Without Leave (AWOL).
On April 11, 2007, the agency dismissed claim 1 because it had
already been raised in a previous EEO complaint.1 The agency
subsequently investigated the remaining claims. 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 the
AJ denied the hearing request on the ground that complainant failed to
comply with the AJ's Scheduling Notice and Order. The AJ remanded the
complaint to the agency, and the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b). The decision concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
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").
Complainant asserts that he was discriminated against in retaliation for
his prior protected EEO activity. 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). Complainant must initially establish a prima
facie case by demonstrating that he or she 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). Proof of a prima facie case will vary depending on the facts of
the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
The McDonnell Douglas analytical paradigm need not be adhered to in all
cases. In appropriate circumstances, when the agency has articulated
legitimate, nondiscriminatory reasons for its conduct, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, i.e., whether the complainant has proven by the
preponderance of the evidence that the agency's explanations were pretext
for discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983). Here, we will assume without so
finding that complainant established his prima facie case of retaliation.
The agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, complainant could not continue to receive
Tour 3 night-differential pay because he was no longer working on a
Tour 3 schedule. Additionally, because he was no longer receiving
the Tour 3 night-differential pay, his gross pay decreased. Further,
while complainant's supervisor threatened to charge him with AWOL for
December 1 and 2, 2006, because of complainant's failure to check in,
he was never actually charged with AWOL. Finally, complainant was
charged AWOL on April 7, 2007, because he failed to check in prior to
1:30 p.m. as required.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, non-discriminatory reasons were pretext
for discrimination. Complainant, however, failed to offer any evidence
that would establish that retaliatory animus more likely than not
played a role in any of the agency's decisions. As a result, we find
that complainant failed to establish that the agency's legitimate,
non-discriminatory reasons were pretext for discriminatory retaliation.
Complainant also alleges that he was subjected to harassment and a hostile
work environment in retaliation for his prior protected EEO activity.
Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or 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., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). To establish a prima facie case of harassment, complainant must
show that: (1) he is a member of a statutorily protected class and/or
was engaged in prior EEO activity; (2) he was subjected to unwelcome
verbal or physical conduct related to his membership in that class
and/or his prior EEO activity; (3) the harassment complained of was
based on his membership in that class and/or her prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to 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).
Upon review of the entire record, the Commission finds that complainant
failed to establish a prima facie case of harassment because complainant
has not submitted evidence to show that the alleged harassment occurred
in retaliation for his prior protected EEO activity. There is nothing
in the record that would indicate that retaliation was more likely than
not a motivating factor in any of the agency actions. Further, we find
that the alleged incidents are not sufficiently severe or pervasive so as
to alter the conditions of complainant's work environment. As a result,
complainant failed to establish that harassment occurred as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision, because a preponderance of the evidence of record does
not establish that retaliation 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
July 23, 2009
Date
1 We note that complainant does not contest this dismissal on appeal.
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0120090189
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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