0120080678
09-25-2009
Peter R. Scott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Peter R. Scott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120080678
Agency No. 1C-441-0032-07
DECISION
On November 19, 2007, complainant filed an appeal from the agency's
October 17, 2007 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 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 decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected
to discrimination based on race and in reprisal for his prior protected
EEO activity.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Mail Handler at the agency's Processing and Distribution
Center in Cleveland, Ohio. The record reflects that on December 31, 2006,
complainant was assigned to work under the supervision of another Mail
Handler (Acting Supervisor). During the evening, complainant entered
an office where the Acting Supervisor was working, sat down at a desk,
and placed his feet up on the desk. Complainant observed the Acting
Supervisor smiling at him and stated "something funny here, Goober?"
The Acting Supervisor then asked complainant to leave the office and
return to work. When complainant refused to return to work, the Acting
Supervisor contacted a Manager Distribution Operations (MDO) and the
Manager of Distributions. After he arrived at the office, MDO ordered
complainant to return to his work assignment. After complainant again
refused to follow orders, MDO called security and had him removed from
the building.
On January 6, 2007, complainant observed two employees eating in the
break room allegedly "staring" at him through a window. He then entered
the room, confronted one of the employees, and repeatedly stated "was
there something you wanted to say?" or "you have something to say to me?"
The other employee present during the altercation alleged that complainant
also began arguing with her as well. The Supervisor Distribution
Operations (SDO) and MDO were informed of these incidents and decided
to place complainant on Emergency Placement in Off-Duty Status because
they determined that he was "a potential threat" to the other employees.
At some point after he was placed on non-duty status that day, complainant
confronted the (former) Acting Supervisor and allegedly threatened him.
The Postal Police were contacted, and complainant was asked to clock
out and leave the facility.
On March 30, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (Caucasian) and in
reprisal for prior protected EEO activity arising under Title VII when,
on December 31, 2006, he was involved in a verbal altercation, management
made false statements against him, and subsequently on January 6, 2007,
he was escorted out of the facility and placed on Emergency Placement
in an Off-Duty Status.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), 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. Specifically, the
agency's decision found that complainant failed to establish a prima
facie case of discrimination and that he failed to establish that the
agency's legitimate, nondiscriminatory reasons for its actions were a
pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination. He contends that he "did not disrupt the workplace
on December 31" and that he did not threaten anyone on January 6.
He further contends that he was "framed by dishonest people, each of
whom has a long standing grudge against me" and that African American
employees were treated more favorably by management officials. He also
states that he did not respond to the investigator's requests for an
affidavit or request a hearing in a timely manner due to his "crushing
work schedule." In response, the agency urges the Commission to affirm
its final decision.
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").
To prevail in a disparate treatment claim, 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 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
discrimination based on race and in reprisal for prior protected
EEO activity, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The Acting Supervisor,
MDO, and the Manager submitted statements into the record stating that
complainant repeatedly refused to follow management's orders during his
shift on December 31, 2006. MDO stated that he placed complainant on
non-duty status due to his failure to follow instructions, his behavior
towards management officials, and his refusal to return to his work
assignment. SDO and MDO stated that complainant was placed on off-duty
status on January 6, 2007 due to his behavior in the break room.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Upon review, we concur with the agency's determination
that complainant failed to establish pretext. We find that the record
is devoid of any evidence that the agency's actions were motivated by
discriminatory animus or a retaliatory motive. We note that complainant
did not submit an affidavit, but he admits in his formal complaint that
he made "smartass" remarks to MDO that amounted to "insubordination"
on December 31, 2006. We further note that there is no evidence that
complainant was treated differently than similarly situated employees
outside his protected classes.
Although complainant denies ever physically threatening any employees
and challenges the credibility of statements submitted by management
officials in the record, several affidavits and statements in the record
support management's version of what transpired during the altercations
in question. Moreover, complainant did not request a hearing, and the
Commission is limited to a review of the record evidence. As a neutral
party, we are not persuaded, based on the record of investigation, that
complainant has shown that the agency's articulated reasons for its
actions were a pretext for unlawful discrimination based on race or in
reprisal for prior protected EEO activity.
Finally, to the extent that complainant is alleging that he was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A prima facie case of hostile work environment is precluded
based on our finding that complainant failed to establish that any of
the actions taken by the agency were motivated by discriminatory animus
or a retaliatory motive. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Accordingly, based on our thorough review of the record, the Commission
determines that the agency's final decision finding no discrimination
was proper and 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
______09/25/09____________
Date
2
0120080678
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080678