0120130651
05-23-2013
Richard J. Small, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Richard J. Small,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120130651
Hearing No. 430201200234X
Agency No. 4K280011511
DECISION
On November 27, 2012, Complainant filed an appeal from the Agency's October 12, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's facility in Hope Mills, North Carolina.
On November 15, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Christian), disability (back), age (40), and reprisal for prior protected EEO activity when:
1. on July 2, 2011, Complainant's PS Form 3996 for additional time was not accepted;
2. he was not allowed union time and access to a union steward to file a grievance;
3. on unspecified dates, he was bypassed for overtime;
4. on unspecified dates, management called him a big baby, told him he is "nothing but a pest" and "the biggest slug in here";
5. on July 9, 2011, he received a letter of warning;
6. on August 27, 2011, management responded to his need to leave work early stating "we're going to put you out on disability retirement" and "don't return to work without a doctor's note"; and
7. on unspecified dates, management failed to follow procedures when he submitted a PS Form 3996.
In a partial acceptance/partial dismissal decision dated December 14, 2011, the Agency dismissed claim 2 for failure to state a claim in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that Complainant's claim that he was denied union time and access to a union steward is not within the Commission's jurisdiction and should be addressed under the Agency's collective bargaining agreement. We find that the Agency properly dismissed claim 2 of Complainant's complaint. 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). Therefore, this claim will not be addressed further in this decision.
At the conclusion of its investigation of the remaining accepted claims, 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 September 11, 2012, motion for a decision without a hearing and issued a decision by summary judgment on October 2, 2012, in favor of the Agency.
In making this decision, the AJ found the following undisputed material facts:
Complainant and two other employees were on the overtime desired list (OTDL), which Complainant's supervisor only used in the event that a part-time flexible or casual employee was not available to work.
On July 2, 2011, Complainant submitted a PS Form 3996 requesting auxiliary assistance to complete his route that day. Management approved 35 minutes of assistance for Complainant.
On July 8, 2011, Complainant attended training on the use of a scanner and mail being picked up in a collection box. However, Complainant refused to sign the training document indicating that he had received the training. As a result, his supervisor conducted a pre-disciplinary interview and ultimately issued a Letter of Warning to Complainant for failure to follow instructions on July 9, 2011.
On July 21, 2011, Complainant filed a grievance regarding the Letter of Warning. The record also indicates that at this time, Complainant was paid $154.79 for working overtime hours.
On July 26, 2011, the Agency approved 60 minutes of overtime for Complainant.
On July 29, 2011, the Agency approved 45 minutes of auxiliary assistance for Complainant.
On July 30, 2011, the Agency approved 35 minutes of overtime for Complainant.
On August 2, 2011, Complainant's Letter of Warning was rescinded and expunged from his personnel records.
On August 27, 2011 Complainant experienced severe back pain, delivered two hours of mail on his route then told his supervisor he needed to leave for the day. Complainant alleges that his supervisor responded by telling Complainant that he needed to go out on disability retirement.
On other specified dates, Complainant contends that his supervisor called him a pest, when he requested Form 3996 approval, and called him a slug because he requested the Form 3996. Complainant also contends that his supervisor called him a big baby.
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 instant appeal followed.
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 identified disputes of material fact.
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 802 n. 13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
The AJ in this matter determined that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the disputed actions -- namely that they used progressive discipline in issuing Complainant the letter of warning and made business decisions in order to promote efficient operations at the postal facility. The Agency in this matter noted that a carrier uses Form 3996 to request overtime or auxiliary assistance on his or her route when the carrier believes that he or she cannot deliver the mail the time allocated. The Agency then has the option to grant the carrier overtime in order to complete the mail delivery, provide auxiliary assistance, travel the route with the carrier to determine the need for extra time, or to deny the request. According to the record, Agency policy requires managers to equalize the amount of overtime hours distributed among all the carriers on the overtime desired list. The record here indicates that Complainant was actually granted overtime from July 2001 through November 2011. In instances when overtime hours were not equal among employees on the OTDL, those individuals were paid for any discrepancy in distribution of overtime hours. Regarding Complainant's claim that he was forced to provide medical documentation when his back pain caused him to leave work early, the AJ determined that Complainant's supervisor was entitled to request medical documentation from his doctor to substantiate his absence because Complainant's absence was unscheduled.
Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. Upon review, we find that Complainant failed to prove, by a preponderance of the evidence, pretext on any alleged basis. We find no evidence that the Agency's actions were motivated by discriminatory animus.
To the extent that Complainant alleges that management calling him names like "big baby" constituted discriminatory harassment, the Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
The AJ in this matter determined that Complainant failed to demonstrate that any of the Agency's alleged conduct was sufficiently severe or pervasive to rise to the level of actionable harassment. After a review of the record, even accepting Complainant's allegations as true, we conclude that Complainant did not prove that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment and that he also failed to prove that the Agency's actions were unlawfully motivated by his protected classes. Accordingly, Complainant has not shown that he was subjected to a discriminatory hostile work environment.
We also find that there is no evidence of record to create a genuine dispute of material fact that a nexus exists between the alleged incidents, comments, or actions of the Agency and Complainant having engaged in protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that summary judgment was appropriate in this case because no genuine issue of material fact is in dispute. Complainant failed to present evidence that any of the Agency's actions were motivated by discriminatory animus towards him. We discern no basis to disturb the AJ's decision. Accordingly, after a careful review of the record, the Agency's final order is AFFIRMED.
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
May 23, 2013
__________________
Date
2
0120130651
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130651