0120080448
09-28-2009
Stephen D. Ashby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Stephen D. Ashby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120080448
Agency No. 4F-920-0046-07
DECISION
On November 5, 2007, complainant filed an appeal from the agency's
September 14, 2007 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected to
discrimination and harassment on the basis of disability and in reprisal
for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a city letter carrier at the agency's facility in Escondido,
California.
On March 19, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of disability and in reprisal
for prior protected EEO activity when:
1. On October 26, 2006, management joked about complainant and a coworker
calling in from the same telephone;
2. On October 26, 2006, when complainant went home ill, the agency
required him to supply medical documentation;
3. The agency threatened to issue complainant four letters of warning;
and,
4. The agency issued complainant a seven day suspension and letter of
warning.
In an investigative affidavit, complainant alleged that coworkers told him
that the Supervisor of Customer Services (Supervisor) and the Customer
Services Manager (Manager) joked about complainant and another employee
using the same telephone to call in sick. Complainant further stated
that when he asked the Customer Services Manager to stop the harassment,
the Manager laughed and said that four letters of warning were heading
his way. Complainant stated that the Supervisor later called him into
the office and apologized for the joke, but complainant refused to accept
the apology.
Complainant further alleged that when he told the Manager that he was
going home because he could not carry mail, the Manager threatened to
issue him a letter of warning if he did not provide him with a doctor's
note. Complainant maintained that his supervisor wanted him to resign
because he has a back condition.
Complainant also alleged that he was issued a letter of warning for
reporting his absence in a late manner, although "people call the hotline
late all the time." Affidavit A, p. 17. Complainant further alleged
that management issued him a seven day suspension for not reporting an
injury, although the Manager had maintained that the injury occurred at
complainant's previous job.
The Supervisor stated that on October 26, 2006, he made a comment in
"bad judgment and frustration that [complainant and a coworker] must
have used the same phone to call off." Affidavit B, p. 1. He stated
that he apologized to complainant and his coworker for making the joke.
The Supervisor further stated that the Manager told complainant to
provide documentation to support complainant's leaving work on October 26,
2006, because complainant had not indicated that he was ill until after
he became agitated at the joke apology meeting. The Supervisor stated
that he was not aware that complainant was hired with a back disability.
Additionally, the Supervisor stated that complainant was issued a letter
of warning on August 16, 2006 because he repeatedly called in after his
regular starting time, which hindered management's ability to cover the
work to be done on that day. The Supervisor stated that complainant was
issued a seven day suspension because complainant failed to immediately
report an accident, as required by agency regulations.
The Manager stated that he was not involved in the Supervisor's joke
about complainant and a coworker but attended the meeting in which the
Supervisor apologized to complainant. The Manager also stated that he
did not believe that he told complainant that four letters of warnings
would be issued to him, but he believed that he told complainant that
requested disciplinary actions were "in the works." Affidavit C, p. 2.
The Manager also stated that on October 26, 2006, he told complainant that
he had to submit documentation when complainant claimed that he could
not finish working that day because complainant had not indicated that
he was ill until he got agitated in the apology meeting. The Manager
stated that he offered to wipe all discipline from complainant's record
if he resigned from the agency as part of a grievance settlement offer,
but complainant rejected the offer.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The final decision dismissed claims 1 and 31 on the basis
of failure to state a claim, and claim 4 on the basis of untimely EEO
counselor contact. The final agency decision alternatively addressed
the merits of complainant's complaint. The decision concluded that
complainant failed to prove that he was subjected to discrimination or
harassment as alleged because he did not establish a prima facie case
of discrimination or prove that the agency's non-discriminatory reasons
were pretextual.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the Supervisor is not truthful
because he tried to cover up matters raised in complainant's 2006
grievance. The agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
Harasssment and Disparate Treatment
In order 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). Complainant must initially establish 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish a
prima facie case of reprisal by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. 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).
To establish a claim of harassment based on disability or reprisal,
complainant must show that: (1) he is a member of the 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. 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). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
For purposes of analysis, we assume that complainant is a qualified
individual with a disability and established a prima facie case of
reprisal and disability discrimination. Nonetheless, we find that
the agency provided non-discriminatory explanations for its actions,
as detailed above. Complainant contends that the Supervisor is not
truthful because he tried to cover up matters raised in complainant's 2006
grievance. However, we determine that, in this case, the Supervisor's
explanations are corroborated by the Manager. Complainant also generally
contends that other employees called the hotline late when they were
absent, but complainant failed to identify these employees. We conclude
that complainant failed to prove that the agency's non-discriminatory
explanations were pretext for unlawful discrimination. Moreover, we
find that the alleged actions were not sufficiently severe or pervasive
to constitute a hostile work environment. Thus, we find that the agency
properly found no discrimination or harassment.2
CONCLUSION
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 decision
because the preponderance of the evidence of record 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
_____09/28/09_____________
Date
1 We note that the final decision purports to dismiss claim 2, but the
analysis clearly refers to matters contained in claim 3.
2 Because we affirm the agency's finding of no discrimination, we decline
to address the agency's procedural dismissal of complainant's complaint.
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0120080448
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080448