0120162721
01-25-2018
Rashad W,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rashad W,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120162721
Hearing No. 551-2012-00062X
Agency No. 1E-981-0004-08
DECISION
On June 30, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 9, 2016, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Distribution Operations, EAS-17 at the Agency's Processing and Distribution Center in Seattle, Washington.
On November 1, 2007, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On February 13, 2008, Complainant filed a formal EEO complaint claiming that since approximately late 2005 or early 2006, he was subjected to harassment and a hostile work environment on the bases of race (Filipino), color (brown), age (over 40) and in reprisal for prior protected activity when:
1. within a month after being moved to Tour 1 (pursuant to a 2005 EEO settlement agreement), his manager (M1) joined him on Tour 1;
2. after he was returned to Tour 3, M1 again joined him and M1 never returned Complainant to Tour 1, as agreed to in the 2005 EEO settlement agreement;
3. in January 2006, he received a 6% increase instead of an 8% increase;
4. in 2006, he was not given the opportunity to elect his prime-time vacation, and was instead forced to use incidental leave from July 30, 2006 to August 23, 2006;
5. discipline was not removed from his file, pursuant to the 2005 EEO settlement agreement;
6. he has not been paid straight time overtime for hours worked at the Skyway Station (from September 17, 2002 to January 17, 2003);
7. he has been excluded from office activities (i.e. barbecues, camping trips, etc.);
8. in January 2007, he became aware that he was given a 6% increase instead of 8%;
9. on various dates from February 12, 2007 to December 17, 2007, his start time was changed;
10. on October 18, 2007, he was told by management that he has poor judgment, should look for other areas/places where he can work better, and he could no longer entertain grievances or requests for information from the union;
11. on January 17, 2008, he was issued a Letter of Official Instruction;
12. on an ongoing basis, his designated off-days were changed and/or his leave requests were denied; and
13. his recommendations to give an employee an award or citation have been denied.
On April 14, 2008, the Agency partially accepted claim 9 regarding the dates September 17, 2007, to December 17, 2007, for investigation. The Agency also partially accepted claim 12 regarding the dates "from an ongoing basis since September 17, 2007" for investigation. The Agency dismissed claims 1-8, and 10 - 13 on the grounds of EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency also dismissed claims 7, 10, 11 and 13 on alternative grounds, for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
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 Equal Employment Opportunity Commission Administrative Judge (AJ1). Complainant timely requested a hearing. On February 20, 2009, AJ1 issued a Notice of Intent to issue a decision without a hearing. Both parties submitted responses to AJ1's Notice of Intent to issue a decision without a hearing. Upon review of the responses and the record, AJ1 issued a decision without a hearing on April 7, 2009, in favor of the Agency. The Agency subsequently issued a final action, dated April 23, 2009, implementing AJ1's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed the Agency's implementation of AJ1's decision as well as the Agency's decision to dismiss claims from its investigation. This appeal was the subject of EEOC Appeal No. 0120092451 (Sept. 11, 2013). In EEOC Appeal No. 0120092451, the decision found that claims (1), (2), and (5) involved a claim of breach which was separate from Complainant's claims of discrimination.2 In addition, the decision found that the Agency's dismissal of claims (3), (4), (6), (7), (8), (10), (11), (13) constituted additional events as part of Complainant's claim of harassment alleged in claims (9) and (12) which were accepted for investigation.3 Based on the reversal of the Agency's dismissal decision, the decision vacated AJ1's decision and remanded claims (3), (4) and (6) - (13) to the Agency for further development of the investigative record.
Pursuant to EEOC Appeal No. 0120092451, the complaint was investigated and Complainant requested a hearing. The matter was assigned to AJ2. AJ2 held a hearing on September 18 and 19, 2014, and issued a decision on June 1, 2016. AJ2 issued his findings of fact based on the evidence provided including the testimony of seven witnesses including Complainant. AJ2 found that Complainant alleged a claim of harassment involving assignments, leave and pay raises.
AJ2 noted that at the hearing, Complainant testified about his history with the Manager. Pursuant to a settlement agreement, Complainant was reassigned from Tour III to Tour I in December 2005. In 2006, the Manager was transferred to Tour I. At the time, Complainant was asked if he wanted to return to Tour III. Complainant replied that he did and provided his request in writing as requested by the Manager. Complainant believed that the Manager reacted in an angry manner to the written request. Complainant stated that the Manager changed his starting times and designated days off on several occasions in 2007. Complainant believed that the Manager should have changed the schedules for those with less seniority before he changed his schedule. In fall 2007, Complainant testified that the Manager had him come into the office without work assignments and had Complainant clear his movements with the Lead Supervisor. The Lead Supervisor alleged, jokingly, called Complainant her "prisoner" and Complainant referred to the situation as "prison." Complainant noted that he inadvertently sustained a union grievance and, as a result, he was issued a Letter of Instruction on January 17, 2008, for mishandling the grievance. Complainant claimed that the Manager did not invite him to an annual barbecue and camping trip and had Complainant work to cover those employees who went to the barbecue. Complainant also stated that the Manager interfered with "prime-time vacation" selections allowing junior supervisors ahead of Complainant. As evidence for this, Complainant testified about the leave request in 2012 which AJ2 noted was not within the time frame of the claim of harassment raised in the complaint at hand. Complainant noted that he recommended a subordinate for a merit award but it was denied by the Manager. The Lead Supervisor made the same recommendation two weeks later and the Manager approved it. Complainant believed that the Manager's action caused him to lose credibility with subordinates. Complainant testified that the Manager denied his request for leave to take his wife to a medical appointment. AJ2 noted that Complainant did not provide any proof regarding his claim that he received lower wage raises than others.
Complainant called witnesses including the Manager of Distribution Operations for Tour III (Manager DO1). The Manager DO1 testified that the Manager could be intimidating toward some people and his management style is that of a father. He gives expectations and if you meet them, then you are good and if you don't, then the Manager lets you know. He also stated that seniority is not the only basis for the decision and that managerial rotation is within the Manager's discretion. He also indicated that the managers within the shifts have different skill sets from others in other shifts. The Manager DO1 noted that he prepared weekly supervisory schedules from 2006 to 2008. He noted that Complainant had an early start time on Sundays than other days in the week based on mail flow and the start time for the craft employees. The Manage DO1 also testified that vacation slots were set by March of each year. If people switched Tours like Complainant, management tried to honor the vacation schedules but sometimes, due to the switches, they needed to be changed. Finally, as to the nomination of the award, the Manager DO1 indicated that it was the Lead Manager, not the Manager who would have input and that a second recommendation by the Lead Supervisor would have "sealed the deal" on the nomination.
Complainant also called the Lead Supervisor as a witness. She noted that they worked together despite being assigned to different sections. She indicated that she would provide him with advice. AJ2 noted that during the hearing, Complainant accused her of embarrassing him in front of subordinates by yelling at him. The Lead Supervisor denied the claim. Complainant then called another Supervisor who testified that management changed her schedule as well and that the invitation to the barbecue was sent to every supervisor. She also testified that she did not receive an 8% raise as Complainant asserted. Complainant called another supervisor but she stated that she did not observe disputes between Complainant and the Manager.
Both parties called another supervisor who stated she gave Complainant his evaluation and denied him a recourse request. She told Complainant that he would not get the same pay increase because he had a "live" discipline on his record. Finally, the Agency called the Manager as a witness. He noted that "prime vacations" were for craft employees, not supervisors and that the seniority is different. The Manager stated that the schedules were based on the machines and on the needs of the office. The Agency needed coverage by management at all times and it was sometimes based on skills of the supervisor. As such, the Manager denied claims involving the Lead Supervisor and leaving Complainant without assignments. He also indicated that he invited Complainant to the barbecue and camping trip. Regarding the award nomination, the Manager noted that supervisors are to "go to bat" for awards. Complainant failed to do so.
Based on AJ2's findings based on the record and the two-day hearing, he determined that Complainant failed to establish his claims of harassment and disparate treatment. To the extent, Complainant alleged disparate treatment, AJ2 held that Complainant failed to establish a prima facie case of discrimination. AJ2 noted that the Agency provided legitimate, nondiscriminatory reasons for its actions. AJ2 held that Complainant received a 6% raise while the Lead Supervisor received a 6.5% because Complainant had a "live" disciplinary action. The Agency also showed that Complainant was issued the Letter of Instruction because Complainant sustained a grievance without authority and the Agency was penalized. AJ2 found that Complainant failed to show that the Manager violated the seniority rules or policies and noted that Complainant erroneously relied on the Collective Bargaining Agreement which applies to craft employees, not supervisors. Finally, AJ2 determined that Complainant did not provide evidence that he was not paid overtime from 2002 to 2003. AJ2 noted that Complainant did not establish that the Agency's reasons for its actions constituted pretext for discrimination. As such, AJ2 concluded that he did not show that he was subjected to disparate treatment.
AJ2 then turned to Complainant's claim of harassment. AJ2 found that Complainant failed to establish that the events alleged in support of his clam of harassment occurred because of his race, national origin, color, age and/or prior EEO activity. As such, AJ2 concluded that Complainant did to show that he was subjected to a hostile work environment as alleged.
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. This appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
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, we find that the record supports AJ2's finding that the Agency provided legitimate, non-discriminatory reasons for its action and that Complainant failed to show that these reasons were pretext for discrimination. As such, we discern no basis to disturb AJ2's decision.
Complainant also alleged that he was subjected to harassment. It is well-settled that harassment based on an individual's race, national origin, color, age, and/or in retaliation for prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on his race, national origin, color, age and/or 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review, we find that the record supports AJ2's decision finding that Complainant failed to establish that the alleged events occurred because of his protected bases and/or his prior EEO 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 action implementing AJ2's finding of no discrimination or harassment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 25, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that Complainant's claim of breach was addressed in the Commission's decision in EEOC Appeal No. 0120121303 (May 29, 2013).
3 The decision noted that the Agency had dismissed portions of claims (9) and (12). The decision found that the Agency's partial dismissal of these claims were also inappropriate.
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