0120101066
06-10-2010
Sidney C. McKinney, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Sidney C. McKinney,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120101066
Hearing No. 551-2008-00045X
Agency No. 1E-981-0035-07
DECISION
On January 4, 2010, complainant filed an appeal from the final agency
decision, dated November 16, 2009, 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).
During the relevant period, complainant worked as a Mail Handler/Equipment
Operator at a Washington state postal facility. He filed a formal EEO
complaint alleging that the agency subjected him to harassment on the
bases of race (Black) and reprisal for prior protected EEO activity
when (1) in April 2007, it failed to provide him copies of Request for
or Notification of Absence forms (Form 3971) after numerous requests,
(2) in mid-April 2007, complainant learned that management denied four
3971s, (3) on February 23, 2007, the agency issued complainant a seven
day suspension citing Unacceptable Conduct1, (4) in April 2007, the
agency failed to pay complainant for eight hours although he called in
and completed a 3971 for his absence, and (5) management spread emails
about complainant using profanity toward supervisors and arriving to
work drunk.
The agency deemed it appropriate to dismiss the complaint for procedural
reasons pursuant to 29 C.F.R. � 1614.107(a). However, it assumed for
the sake of argument that the complaint was procedurally sufficient and
conducted an investigation of the matter.
During the agency investigation, complainant's supervisor (S1) stated
for (1) complainant was treated like other employees regarding 3971
copies as they are required to attach carbon paper to the 3971 form and
complainant did not, (2) complainant frequently neglected to submit 3971s
and they were required for submission to the Family and Medical Leave
Act (FMLA) coordinator, and complainant failed to provide appropriate
FMLA documentation so his leave was disapproved, (4) the date-at-issue
was complainant's non-scheduled day but the district office called him
in for mediation for another claim and he was paid for the time spent
there - four hours at overtime pay, (5) complainant has a history of
using profanity, a loud voice, and an unprofessional tone in speaking
with coworkers and management and S1 sent himself emails as a record of
the behavior. Summarily, S1 stated that the actions taken were within
supervisory responsibilities, and he noted that he and complainant do not
share all the same scheduled days so others also supervise complainant.
An automation supervisor (S2) stated, with regard to (3), that a female
coworker alleged that complainant harassed and cursed at her several
times so he conducted an investigative interview, which resulted
in complainant's suspension. As to (5), complainant's second level
supervisor stated that various supervisors work with complainant and that
she received emails about his unacceptable behavior because supervisors
were uncomfortable and frustrated.
Following the agency investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Subsequently, the AJ dismissed
the matter pursuant to 29 C.F.R. � 1614.107(a)(9). The agency issued
a final decision finding no discrimination. Specifically, the agency
concluded that complainant failed to show that its actions were based
on impermissible motives. The agency found that complainant did not
establish pretext to show disparate treatment or establish discriminatory
harassment. The instant appeal from complainant followed, without
substantive comment to the merits of the claim.
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").
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 U. S. 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 Dep't 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).
Further, to establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) he is a member of a
statutorily protected class; (2) 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. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Here, we find that complainant failed to rebut management's explanation
for its actions. There is simply insufficient evidence to conclude that
the agency actions alleged by complainant were motivated by unlawful
animus rather than the legitimate, nondiscriminatory reasons articulated
by the agency. We conclude that complainant failed to establish pretext.
Further, we find that complainant failed to allege a work environment
that rises to the level of hostile or show that the environment was
based on impermissible factors. Based on a thorough review of the
record, we AFFIRM the final agency decision finding 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
June 10, 2010
__________________
Date
1 We note that, on March 16, 2007, the agency rescinded the suspension
stating that information in the letter was "flawed."
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0120101066
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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