Robert O. Ball, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 12, 2009
0120070090 (E.E.O.C. Jan. 12, 2009)

0120070090

01-12-2009

Robert O. Ball, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert O. Ball,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070090

Agency No. 1E-971-0011-06

DECISION

On October 5, 2006, complainant filed an appeal from the agency's

September 7, 2006 final decision 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.

For the following reasons, the Commission AFFIRMS the agency's final

decision.

At the time of events giving rise to this complaint, complainant worked

as a Casual Clerk at the agency's work facility in Portland, Oregon.

On April 13, 2006, complainant filed an EEO complaint alleging that he was

discriminated against on the bases of race (Caucasian), national origin

(Caucasian), sex (male), age (52), and in reprisal for prior protected

EEO activity under Title VII of the Civil Rights Act of 1964 and

the Age Discrimination in Employment Act of 1967 when:

1. On April 14, 2005, the Lead Personnel Services Specialist singled

complainant out by asking him for comments during a pre-hire orientation.

2. In July 2005, complainant received a letter from the Acting Manager

stating that he would not be hired at that time.

3. From December 10, 2005, through December 15, 2005, complainant was

subjected to hostile comments from female coworkers.

4. In December 2005, the Acting Supervisor refused to assign complainant

to the case he had been working in prior to his lunch break.

5. On December 29, 2005, at the end of his casual appointment,

complainant's evaluation form was marked "do not rehire".

On April 21, 2006, the agency accepted claims (3) and (5) for

investigation. Claims (1) and (2) were dismissed pursuant to 29

C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact.

The agency determined that complainant's EEO contact of January 4, 2006

was 157 days after the most recent incident alleged in these claims,

and therefore after the expiration of the 45-day limitation period.

The agency dismissed claim (4) pursuant to 29 C.F.R. � 1614.107(a)(1)

on the grounds of failure to state a claim. The agency determined that

complainant failed to show how being required to work in a different

case from the one he was working in before lunch resulted in a direct,

personal deprivation to him.

At 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). The agency issued

a final decision wherein it determined that complainant failed to prove

that he was subjected to discrimination as alleged.

In its final decision, the agency determined complainant failed to state

a claim with regard to claim (3). The agency stated that complainant

alleged that one female coworker stated to him to "stay away from me,

you make me nervous". The agency noted that the Supervisor, Distribution

Operations and complainant's Acting Supervisor stated that complainant did

not make them aware of female coworkers making hostile comments toward

him. The agency determined that this coworker's comment to complainant

was not mentioned or used as part of complainant's final evaluation.

The agency also analyzed claim (3) on the merits. Assuming arguendo,

with respect to claim (3) that complainant had established a prima facie

case of race, sex, national origin, reprisal and age discrimination, the

agency stated that it articulated legitimate, nondiscriminatory reasons

for its actions. In terms of a harassment claim, the agency stated that

complainant identified only the incident of December 15, 2005, and that

this incident by itself was not sufficient to establish harassment.

With regard to claim (5), the agency stated that complainant was evaluated

as "do not rehire" for several reasons. According to the agency,

complainant was trained on three occasions but never caught on to the

job requirements. Additionally, the agency stated that three employees

found complainant to be strange and reported they were afraid of him.

Complainant was reported as having a poor attitude because he did not

want to move around as needed and his work performance was characterized

as poor. The agency maintained that complainant became angry when he was

corrected about several mistakes he made while casing mail. Coworkers

complained that complainant was dressed in dirty clothing and talked to

himself angrily through his teeth and swore. The agency determined that

complainant offered no more than speculation and conclusory allegations

as to why management acted as it did. The agency stated that complainant

failed to submit credible evidence that the reasons articulated by the

agency were not the true reasons for its actions.

On appeal, complainant contends that management believed anything women

said about him without ever getting his side of the story. Complainant

states that he was misperceived as having a bad attitude when much of

his reaction was due to severe headaches. Complainant argues that sex

and age discrimination are evident given that most of the individuals

marked eligible for rehire were women, people under 40 years of age and

minorities.

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).

To establish a claim of harassment, complainant must show that: (1) she

is a member of the statutorily protected class; (2) she 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. United States 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). Further, the incidents must have been "sufficiently severe

and pervasive to alter the conditions of complainant's employment and

create an abusive working environment." Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,

Inc., 23 U.S. 75 (1998).

Initially, we note that complainant on appeal does not address the claims

that were dismissed on procedural grounds. Upon review, we find that

these claims were dismissed on appropriate grounds. Accordingly the

agency's dismissal of claims (1), (2) and (4) was proper and is AFFIRMED.

Complainant alleges that he was subjected to a hostile work environment

and harassment when from December 10, 2005, to December 15, 2005, he was

subjected to hostile comments from female coworkers. With regard to claim

(3), the record indicates that complainant identified only one specific

hostile comment allegedly directed toward him during the relevant period.

Complainant has not established that he informed the agency of the

relevant incident. Moreover, the incident at issue lacks sufficient

severity or pervasiveness to constitute harassment. Accordingly, the

agency's final decision finding no discrimination with regard to claim

(3) is AFFIRMED.

As for claim (5), the record reflects that complainant was marked "do

not rehire" based on several concerns involving his job performance and

conduct. These matters constituted legitimate, nondiscriminatory reasons

for the agency's decision not to rehire complainant. Specifically,

they included complainant's inability to develop competence in the job

requirements despite having been trained on three occasions, a poor

attitude because he did not want to move around as needed, comments

from three employees that they found him to be strange and that they

were afraid of him, and that he became angry when he was corrected about

several mistakes he made while casing mail.

Complainant attempts to establish pretext by arguing that the agency

only listened to complaining coworkers and did not elicit his side of

the story. Complainant further argues that a disproportionate number of

the people who were rehired were women, minorities and those under the

age of 40. We find that these contentions presented by complainant do not

credibly challenge the agency's reasons for not rehiring him. The record

is replete with instances of performance and conduct deficiencies on the

part of complainant that justify the agency's decision not to rehire him.

Therefore, we find that complainant has failed to establish that he was

discriminated against on the alleged bases.

The agency's decision finding no discrimination is AFFIRMED.

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 12, 2009

__________________

Date

2

***Appeal number TX***

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120070090