0120071376
04-21-2009
Robert T. Sheen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert T. Sheen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071376
Agency No. 1F-927-0028-06
DECISION
Complainant filed an appeal with this Commission from the December 15,
2006 agency decision finding no discrimination.
Complaint alleges 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.
Specifically, complainant alleged that the agency discriminated against
him on the bases of race (Asian), sex (male), disability (left thumb,
broken teeth, cut lip, bruised palms), age (71), national origin
(Chinese), and in reprisal for prior protected EEO activity when:
1. On April 20, 2006, complainant was charged one hour of leave without
pay (LWOP).
2. In April 2006, complainant did not receive any overtime and he was
not allowed to work overtime in operations 030 and 044.
3. On April 20, 2006, complainant did not receive a response to a request
for the name of the agency's liability insurance.
4. On an unspecified date, complainant was harassed and treated with
disrespect.
After an investigation, complainant was provided with a Report of
Investigation and informed of his right to request a hearing before an
EEOC Administrative Judge or an agency decision. Failing to receive a
response from complainant, the agency issued its decision pursuant to
29 C.F.R. �1614.110(b).
In its April 13, 2006 Partial Acceptance and Dismissal of Complaint, the
agency accepted claims 1 and 2 for investigation. The agency dismissed
claims 3 and 4 pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds
that the alleged incidents failed to state a claim. In dismissing the
claims, the agency noted that complainant failed to show that he was
an aggrieved employee, i.e., that he had suffered a direct and personal
deprivation at the hands of the agency. Complainant is apparently not
challenging the dismissal of claims 3 and 4 on appeal, but to the extent
he is challenging the dismissal of these claims, we find that complainant
has not shown how he was aggrieved or that any conduct was sufficiently
severe or pervasive so as to state a claim of harassment.
In its decision finding no discrimination, the agency found that
complainant failed to establish a prima facie case on any basis and that
complainant failed to show that he was disabled. The agency further
concluded that even if complainant established a prima facie case on
each basis, the agency articulated legitimate, nondiscriminatory reasons
for its actions. In so finding, the agency noted that complainant's
supervisor charged complainant with LWOP on April 20, 2006 (claim 1),
because he left his work area without permission to go to the union
office; that he was paged for over an hour to return to his work area;
and that employees had to obtain permission to leave the workroom floor
to meet with the union steward. The agency also noted that complainant
was eventually credited with the lost hour. Regarding claim 2, the
agency noted that complainant was on light duty and a January 18,
2006 medical document specifically stated that complainant was not to
work overtime. The agency also noted that the supervisor stated that
she was unaware of a January 23, 2006 medical document which stated that
he could work overtime. The agency further noted that on May 16, 2006,
complainant's supervisor learned from complainant's union steward that
complainant could work overtime.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
generally establish a prima facie case by demonstrating that complainant
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 where 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).
To establish a claim of harassment, a complainant must show that:
(1) complainant is a member of the statutorily protected class; (2)
complainant 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.
See 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. 915.003 (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).
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, 1358 (11th Cir. 1982). Whether the harassment
is sufficiently severe to trigger a violation 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, supra.
Because 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).
Upon review, the Commission finds that the agency did not discriminate
against complainant. Because we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions, the Commission
will not discuss the propriety of the agency's prima facie conclusions.
Also, for purposes of this decision, we will assume, without deciding,
that complainant is disabled. Regarding claim 1, the LWOP claim,
the Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for charging complainant LWOP. The record
reflects that complainant was missing from his work area for an hour,
that complainant had gone to the union office, and that he had not
obtained prior permission to do so. Complainant's supervisor stated
that employees must have permission to leave the floor and to see
a union steward. She also stated that after checking complainant's
"story," she credited him with one hour of work instead of one hour
of LWOP. Regarding claim 2, the overtime claim, the agency articulated
a legitimate, nondiscriminatory reason, i.e., the medical records which
the supervisor had did not indicate that complainant was able to work
overtime.
To the extent that complainant is alleging that he was subjected
to a hostile work environment, the Commission finds, including and
considering the dismissed claims, that complainant has not shown that
he was subjected to an environment where the agency's actions were so
severe and pervasive that it altered the conditions of his employment.
Further, the agency articulated legitimate, nondiscriminatory reasons
for the tangible employment actions in which it engaged.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Here, complainant failed to carry this burden.
The agency's decision 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
April 21, 2009
__________________
Date
5
0120071376
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013