0120110194
12-22-2011
Randy J. Green, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Randy J. Green,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120110194
Hearing No. 510-2009-00122X
Agency No. 4H-335-0159-08
DECISION
On August 19, 2010, Complainant filed an appeal from the Agency’s July
9, 2010, 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 Commission accepts the appeal pursuant to 29 C.F.R. §�
�1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales and Service Distribution Associate at the Agency’s Coco
River Station facility in Naples, Florida. Complainant was accused of
embezzlement by the Agency in 2007 and was issued a Notice of Removal
on March 26, 2007. The matter was resolved by grievance settlement and
the Agency agreed to return Complainant to work reducing the removal to
a 30 day suspension.
When Complainant was to return to work, a number of employees came
forward to management concerning claims that Complainant had sexually
harassed a number of women in the workplace prior to his removal.
The employees were not pleased with his return to work. The Management
held a “town hall” like discussion. The Agency investigated the
complaints. The investigation revealed that several women alleged that
Complainant had sexually harassed them. Some of the allegations of sexual
harassment included: Complainant putting his hand under a co-worker’s
skirt and took a picture with his cell phone; Complainant grabbed another
co-worker’s buttock and called her “sexy mamma” and “honey pie;”
Complainant told a third woman that her husband must be happy with her
buttocks; Complainant followed another woman to her home, uninvited,
and tried to kiss and hug her; Complainant tried to touch and kiss a
fifth woman; and Complainant showed a sixth co-worker pictures of a naked
woman and talked about having a threesome. In addition, other employees
expressed how Complainant would go around visiting female coworkers,
flirt with co-workers and customers, and make comments about women’s
breasts and looks. Complainant denied all allegations. On July 25,
2008, Complainant was issued a Notice of Removal for Improper Conduct.
The Removal action was effective September 14, 2008.
On October 10, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American)
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when, on July 25, 2008, Complainant was issued
the Notice of Removal.
At the conclusion of the investigation, the Agency provided Complainant
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. When the Complainant did not object, the AJ
assigned to the case granted the Agency’s June 21, 2009, motion for a
decision without a hearing and issued a decision without a hearing on
June 25, 2010. 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.
The AJ determined that there were no material facts in dispute. The AJ
noted that Complainant’s main arguments about the removal action were
that he denied all the allegations of sexual harassment and that there
were other employees who had engaged in misconduct but not terminated.
The AJ noted that the issue was not whether the allegations of sexual
harassment were true, but whether the Agency’s termination action
was discriminatory. The AJ found that Complainant failed to show that
the removal action constituted discrimination. The AJ noted that the
Agency was faced with an overwhelming number of accusations from several
employees who asserted that Complainant touched, took pictures, made
sexual advances, and showed pornography to them. The AJ indicated that
the Agency was provided with detailed and extremely offensive information
about Complainant. Based on the number of claims of sexual harassment
and the evidence in the investigation by the Agency’s Southeast Areas
office finding that Complainant had committed the alleged acts, the AJ
found that the Agency provided reasonable explanation for its action.
Further, the AJ held that Complainant failed to show that his race or
prior EEO activity had anything to do with removal action or to show
that the Agency’s reasons were pretext. Therefore, the AJ concluded
that Complainant did not establish his claim of discrimination.
Complainant appealed asserting that the Agency violated the settlement
of his grievance when he was removed upon his return from the previous
removal action for embezzlement. Complainant also argued that a co-worker
had a physical altercation in the workplace. Although he was issued
a notice of removal, the Union met with Management and allowed him
to return. Complainant was not given such an opportunity.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when
he or she finds that there is no genuine issue of material fact.
29 C.F.R. § 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, issuing a decision
without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that
the instant complaint was suitable for summary judgment. The record
is adequately developed and there are no disputes of material fact.
In particular, we note that Complainant challenged the credibility of
the allegations of sexual harassment. We find that the credibility of
the allegations by his female co-workers is not material. The Agency
noted that the Notice of Removal was not only based on the number of
women who came forward alleging improper conduct by Complainant but
also the Agency’s own internal investigation into the allegations of
sexual harassment. As such, the Commission finds that the credibility
of the allegations are not a material fact in dispute and that summary
judgment was appropriate.
The Commission now turns to whether Complainant established that the
removal action constituted discrimination based on his race and/or
protected EEO activity. A claim of disparate treatment based on
indirect evidence is examined under the three-part analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
For Complainant to prevail, he or she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has
met its burden, Complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the Agency acted
on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the Agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether Complainant
has shown by a preponderance of the evidence that the Agency’s actions
were motivated by discrimination. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the record showed that the Agency
removed Complainant for improper conduct based on a large number of women
who complained of Complainant’s inappropriate behavior in the workplace.
Based on the allegations, the Agency conducted an internal investigation
into the claims of sexual harassment at the hands of Complainant.
The Agency determined that the information Complainant provided
during the investigation was inconsistent with what he had previously
provided during the internal investigation. As such, based on the
finding of misconduct and Complainant’s prior 30 day suspension for
embezzlement, the Agency issued a Notice of Removal. As noted above,
Complainant alleged on appeal that other employees were returned to
work following a settlement between the Agency and the Union. Here,
the Union did not engage in negotiations and Complainant cannot allege
that the Union’s action was discriminatory.1 Further, Complainant
challenged the validity of the sexual harassment allegations. However,
the Agency issued the Removal based on the large numbers of complaints
and following the investigation by the Southeast Area into the claims
of sexual harassment. It was following the report and Complainant’s
inconsistent and self-serving statements that it issued the Notice of
Removal. Complainant has not shown that the Agency’s reason was pretext
for discrimination based on his race and/or prior protected activity.
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 order implementing the AJ’s decision finding
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
December 22, 2011
__________________
Date
1 The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman
v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
The proper forum for Complainant to have raised his challenges to actions
which occurred during the arbitration proceeding was at that proceeding
itself. It is inappropriate to now attempt to use the EEO process to
collaterally attack actions which occurred during the arbitration process.
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0120110194
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110194