0120091546
05-14-2009
Robert L. Perry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert L. Perry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091546
Hearing No. 532-2007-00172X
Agency No. 1C441001607
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 20, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against him on the bases
of race (African-American), sex (male), age (55), and reprisal for prior
protected EEO activity under Title VII when: he was purportedly subjected
to a hostile work environment from December 2006 and continuing.
Complainant's claim of harassment is predicated on ten incidents
identified in the affidavit that he completed regarding this case.
These incidents can be summarized as follows: (1) in October 2006,
complainant and two other employees who regularly worked in the Presort
002 area on Tour 3 were instructed to work in the automation area due to
the discontinuance of operations in the Presort 002 area on that tour, a
practice that was later reversed; (2) on December 4, 2006, complainant's
request to be excused from overtime was denied; (3) on December 11,2006,
a manager allegedly gave complainant a pre-disciplinary interview based
on her assertion that complainant had walked out during the middle of
a training video; (4) between December 2, 2006 and December 16, 2006,
complainant was paged by a supervisor during his break and lunch times;
(5) on December 5, 2006, a supervisor told complainant that she wanted to
speak with him; (6) On December 5, 2006, a manager allowed a less senior
employee to work a more favored work assignment in the automation area;
(7) On December 12, 2006, complainant's request for annual leave to
leave during the course of the workday was denied based on "needs of
service;" (8) on December 8, 2006, a manager addressed during a meeting
with mail processors issues that she had with the nature of the breaks
that employees who played chess were taking; in response, complainant
complained that he was being singled out as a chess player, in response
to which Manager Paige said to him "hey, stop;" (9) on or around March
29, 2007, a manager referred to complainant as "incompetent" while he
was being trained as an expeditor, after which he submitted a request
for annual leave for the rest of the day that was denied based on "needs
of service;" and (10) On May l, 2007, complainant and a co-worker were
advised that the Presort 002 area would be shut down on Tour 3, after
which they were assigned to work in automation on May 8-12 and part of
May 15; complainant was subsequently re-assigned to work in Presort 002
on a daily basis.
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). Complainant requested
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).
On October 14, 2008, the Administrative Judge (AJ) issued a summary
decision finding that complainant has failed to demonstrate that he has
been discriminated against as a result of a hostile work environment. The
AJ determined that complainant is a member of several protected classes
based on his race, African American; sex, male; age, fifty-five and
prior EEO activity; and he was subject to conduct he considered unwanted
as recited above, but he failed to present any evidence to support his
assertion that the conduct he complained of was based on his protected
classes.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(a), 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 such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On appeal, complainant mainly asserts that agency management has
continuously conspired to create a hostile work environment for him.
However, beyond his bare assertions, complainant has not identified
material facts in dispute which could alter the adjudication of his
claims.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
May 14, 2009
__________________
Date
2
0120091546
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091546