0120131227
06-07-2013
Steven H. Waitzman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Steven H. Waitzman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120131227
Hearing No. 532-2012-00080X
Agency No. 4C-430-0006-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 27, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Non-Traditional Full-Time Clerk at the Agency's Mount Vernon, Ohio Post Office.
On February 8, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of sex (male) and in reprisal for prior protected activity when1:
1. on October 11, 2010, he was scheduled to work the Columbus Day holiday;
2. on October 12, 2010, he was forced to take a two and one-half hour lunch;
3. on unspecified dates, the Manager shows preferential treatment to a co-worker;
4. bid assignments effective November 19, 2011, were more preferentially designed to benefit Part-Time Flexible (PTF) clerks senior to Complainant;
5. during a meeting on February 7, 2012, he was told management had concerns about his mental stability and considering requiring him to undergo a fitness for duty examination;
6. on November 9, 2010, he was issued a 5-day suspension for improper conduct; and
7. on November 14, 2011, he was issued a letter of warning for improper conduct.2
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 18, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In her decision, the AJ found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of sex and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on sex and retaliation. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, the Postmaster stated that a named female junior clerk had requested time off during the Columbus Day holiday to attend to personal needs that weekend, and prior to her time off she had worked late on Saturday, October 9, 2011, when other clerks went home early and also worked overtime on Tuesday, October 12, 2011. The Postmaster further stated that Complainant was scheduled to work the Columbus Day holiday because "he was the next junior person in line not already working and eligible to work. The Complainant was qualified to work the CSBCS machines and we usually ran some sort of carrier route sort around the holiday so Complainant had different skills than [a named junior clerk] which was important for a holiday weekend, when volume tends to be higher."
Furthermore, the Postmaster stated that Complainant's sex was not a factor "in any decision I made regarding schedule around the holiday, and a person's sex in general is not consideration when setting the schedules. I recall at that time, I had nearly 50/50 male/female ratio of clerks and gender was not a factor in setting of holiday schedules but availability and qualifications to meet operational needs was."
Regarding claim 2, the Postmaster stated that she probably did the schedule for October 12, 2011 "so I probably told [Complainant] to take a two and one half hour lunch. It is not uncommon for us to have made these sorts of requests. Since it was the day after the holiday, volume could have been much higher thus resulting in the need to adjust schedules. To the best of my recollection, [Complainant] did not work greater than 12 hours. This sort of request may have resulted in overtime but he worked until 5:00 that day so I do not believe this to be an issue. I've swung other clerks just like this."
Regarding claim 3, the Postmaster stated she had the same working relationship with Complainant and the co-worker. The Postmaster further stated that Complainant and the co-worker "all got the same amount of hours. That said, [co-worker] was trained on different things than Complainant, which means that they ended up in differing assignments on occasion and I do recall that [co-worker] did have some FMLA requirements related to a special needs child that required accommodation and which were accommodated."
With respect to Complainant's allegation that the named female co-worker was only scheduled to work two holidays whereas other clerks with more seniority were required to work more holidays, the Postmaster stated that there was no preferential treatment in regard to scheduling "as it is my practice to schedule based on the needs of the business and accommodating seniority where necessary or practicable. To the extent that one carrier may have ended up working more holidays than another, the only thing that comes to mind is that with the CSCBS machines we sorted out our letters and [co-worker] was not qualified to run the machines and so we would sort the mail as much as possible on the Holiday to have it ready the day after the Holiday and she was not qualified to do that work. However, I would think that [co-worker] worked just as much as [named co-worker] and [Complainant].
Regarding claim 4, the Supervisor of the Mount Vernon stated that during the relevant time she started working on the bid assignments because the Postmaster was the Officer-in-Charge at the Agency's Westerville facility at that time "but she returned and we worked together on those until they were finalized which [Postmaster] did." The Supervisor stated that she and the Postmaster looked at the needs of the Mount Vernon Post Office and "basically designed assignments in alignment with the needs of the unit which is to say to ensure that the unit could operate and function. The bidding process accommodates seniority and the bidding was conducted on seniority. Nothing about this process was designed nor intended to disadvantage anyone, including specifically the Complainant."
With respect to Complainant's allegation that the bid assignments were unfair because he works late and then has to come in early the next morning while other two PTFs have more even start time while his fluctuate all week, the Supervisor stated that there was a choice offered in regard to how each PTF clerk obtained his or her bid. Specifically, the Supervisor stated that each PTF "was able to choose their own bid. The process was done by seniority. The Complainant had the opportunity therefore to select from two options and he selected the option about which he now complaints."
The Postmaster stated that the bid assignments were designed like any bids in any installation. That is, we needed to arrange a schedule that would cover Mount Vernon from 3:15 in the morning until 6:00 p.m. to keep within the restraint of not scheduling carriers so as not to work more than 35 hours. [Supervisor] and I set-up bids and then put them out to bid. There were four bids available." The Postmaster stated that two named senior female clerks bid the top two bids which included 33.5 and 32 hours, respectively.
Further, the Postmaster stated that Complainant "bid the third bid which included 34.25 hours - so he had more hours scheduled than the other two persons who are female but are senior to him and he has Wed off. The final bid went to the most junior person and he has 32 hours. The Union told us, including the Complainant, that the senior people usually get the better bids and while arguably [two named senior female clerks] got the better bids, to the extent that they were bids that they were able to select based on their needs..."
Regarding claim 5, the Manager of the Post Office Operations for Area A, including the Mount Vernon Post Office. The Manager acknowledged telling Complainant on February 7, 2012 that management had concerns about his mental stability and was considering having him undergo a fitness for duty examination. Specifically, the Manager stated that Complainant "has a long history of writing Congressman, local police, and the FBI to convey his concerns over [a named Postmaster]. He has written the District Manager and I believe he has written the Postmaster General; all to express his apparent concerns with [Postmaster] and her management style and specifically as it relates to [Postmaster] having an error in judgment several years back for which [Postmaster] received disciplinary action. These letters are extremely lengthy, they cite concerns about [Postmaster] from past history that we consider to be closed and Complainant continues to undertake these charges and they are not substantiated."
The Manager stated that management has also received comments "from other personnel in the facility that similarly express concerns with [Complainant's] stability and the local management team has raised concerns about his stability as well."
Regarding claim 6, the Postmaster stated that in regard to Complainant's harassment claims, management had "numerous face to face meetings with Labor, Employee Assistance Program, the Post Office Managers, unions and "each meeting has been resolved and if formal resolution was reached, appropriate action was taken and agreed to by all parties and ultimately, the Complainant would later follow up with more letters concerning the Complaint."
Regarding claim 7, the Postmaster stated that on November 14, 2011, she issued Complainant a Letter of Warning for Improper Conduct. Specifically, the Postmaster stated that on October 24, 2011, Complainant "began arguing with me on the work room floor. The argument was because he asked if I needed him to stay and I said, 'yes, you do need to stay and get the truck out because you did not help the guys in the back.' At this, Complainant said I talked to him incorrectly."
The Clerk/204B supervisor stated that during the relevant time as a clerk, she and Complainant are co-workers. However, when she is assigned as a 204B, she supervises Complainant. The clerk stated that on October 24, 2011, an incident occurred when she was dispatching mail and Complainant asked the Postmaster about leaving for the day, but the Postmaster thought that there was more work to be done and that Complainant should stay and help. The clerk stated that "Complainant had not checked to see what all was finished or what I had done before the truck got here on that date when he asked if he could leave. [Postmaster] was on her way out the door but [Complainant] started raising his voice and arguing and demanding a Union Steward. All I heard her say was that he needed to stay and provide further assistance to me."
Further, the clerk stated "to me it just seems that [Complainant] is just argumentative over anything that [Postmaster] says to him; he is always raising his voice with her and he tends to immediately demand a Union Steward. I don't know that he refused to obey instructions but after that incident, he walked around and did not assist me but left when I completed the work."
Complainant, on appeal, argued that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argues that there are inaccuracies in . . . the AJ's decision "as to my assertions regarding the Scheme. I did not assert that these other Clerks are not proficient in the Scheme. What I alleged is that other Clerks are not admonished for making mistakes, as I have been admonished by [Postmaster]."
Complainant further argues that he found it troubling that the AJ found that the Letter of Warning was issued "for legitimate reasons, citing poor performance and improper conduct, when I believe there is enough evidence to refute such allegations. I believe that the [AJ] is fundamentally wrong in her contention that the Postal Management has taken prompt and immediate action regarding my claims about [Postmaster]. I believe quite the contrary is true. Postal Management has engaged in pretense and fiction of responding in a responsible manner."
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation.
The Commission also determines that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's sex or prior protected activity. We further find that the incidents of harassment identified by Complainant were not sufficiently pervasive or severe to create a hostile work environment. We discern no basis to disturb the AJ's decision without a hearing, finding no discrimination.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 7, 2013
__________________
Date
1 The record reflects that claims 4 - 7 and reprisal as a basis were later added to the instant complaint.
2 On February 24, 2011, the Agency issued a final decision dismissing the instant claims 1 - 3 for failure to state a claim. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Waitzman v. United States Postal Service, EEOC Appeal No. 0120112469 (January 5, 2012). Following the Commission's decision, the Agency processed the remanded claims 1 - 3 in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
The record also reflects that Complainant filed a separate EEO complaint with respect to the 5-day suspension issued to him in November 2010. As the 5-day suspension was expunged pursuant to a grievance settlement, the Agency dismissed the complaint on the grounds of mootness, pursuant to 29 C.F.R. � 1614.107(a)(5). On appeal, we affirmed the dismissal as moot. However, in a footnote, we stated that the suspension should be considered as evidence in support of a harassment claim, which is now the subject of the instant appeal. Waitzman v. USPS, EEOC Appeal No. 0120113358 (January 5, 2012).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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