Peter R. Scott, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionSep 25, 2009
0120080678 (E.E.O.C. Sep. 25, 2009)

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

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0120080678

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120080678