0120083434
01-23-2009
Ricardo Bennett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ricardo Bennett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083434
Hearing No. 510-2008-00150X
Agency No. 4H-330-0311-06
DECISION
On July 30, 2008, complainant filed an appeal from the agency's July
2, 2008 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 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 order.
During the relevant period, complainant worked as a Laborer Custodian
at a Florida facility of the agency. In a formal EEO complaint dated
November 1, 2006, complainant alleged that the agency discriminated
against him on the basis of reprisal for prior protected EEO activity
when management, on August 2 and 4, 2006, subjected him to investigative
interviews alleging abuse of family and medical leave, and intimidated
and harassed him into resigning from his position on August 22, 2006.1
During an agency investigation, complainant's supervisors stated that
he was interviewed regarding his irregular attendance and unscheduled
absences. The record contains a report dated July 17, 2006 from the
agency's Office of Inspector General, stating that evidence exist that
complainant abused agency leave benefits. The report compares his
absences at the agency with his attendance at a second job with another
employer. Also, the record contains a resignation from complainant dated
August 22, 2006, citing "unfounded, defaming and malicious allegations."
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) or an immediate final
decision from the agency. Complainant chose the former. Subsequently,
on June 19, 2008, the AJ assigned to the case issued a decision without
a hearing. The AJ concluded that complainant failed to establish a
nexus between his prior EEO activity and the agency's actions. Further,
the AJ concluded that complainant failed to show that the legitimate,
nondiscriminatory reasons articulated by the agency for its actions;
i.e., complainant's receipt of sick leave and other leave benefits at
the agency while working at another employer, irregular attendance,
and unscheduled absences, were pretext. Finally, the AJ found that the
agency had sufficient justification to conduct interviews and consider
terminating complainant's employment, and that the agency actions in the
constructive discharge claim did not rise to the level of a hostile work
environment. Subsequently, the agency issued a final order adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged. The instant appeal from complainant followed.
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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be
regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993).
To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) s/he is a member of a statutorily
protected class; (2) s/he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work
environment. Humphrey v. U. S. Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. �1604.11. 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
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, first, we find that the AJ's issuance of a
decision without a hearing was appropriate as no genuine issues of
material fact exist. Next, we find that complainant failed to show
that the alleged agency actions were based on discriminatory motives
or rose to the level of a hostile work environment. With this finding,
complainant's claim of constructive discharge fails because he can not
show working conditions that are so intolerable that a reasonable person
in complainant's position would feel compelled to resign. Accordingly,
we AFFIRM the agency's finding of no discrimination
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
January 23, 2009
__________________
Date
1 The complaint was treated as a mixed case and complainant appealed
the matter as a constructive discharge to the Merit Systems Protection
Board (MSPB). The MSPB docketed the appeal as AT-0752-08-0090-I-1 and,
later, dismissed it for lack of jurisdiction. The MSPB concluded that
complainant failed to show that his resignation was involuntary.
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0120083434
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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