Sylvester C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionJun 23, 20160120142168 (E.E.O.C. Jun. 23, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sylvester C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142168 Hearing No. 420-2013-00225X Agency No. 4G-350-0072-13 DECISION Complainant filed an appeal concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s work facility in Mobile, Alabama. On May 2, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the bases of his age (52) and in reprisal for his prior protected EEO activity under the Age Discrimination in Employment Act when: 1. Beginning on March 16, 2013, Complainant’s second level supervisor, the Manager, Customer Services, forced him to carry unfamiliar pivot routes on various dates, which resulted in him having to work more than eight hours a day and needing to request overtime. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120142168 2 2. On May 2, 2013, Complainant was issued a Letter of Warning and charged with a Failure to Follow Instructions for the use of .65 hour of unauthorized overtime.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment and issued a decision without a hearing on April 22, 2014. The AJ found that no discrimination occurred. With regard to claim (1), the AJ noted that Complainant stated he was not on the desired overtime list, and that he informed his Supervisor he was 52 years old and unable to deliver mail as he had in the past, but that nevertheless he was given relief assignments in unfamiliar areas. According to the Supervisor, on March 16, 2013, the Manager, Customer Services, pursuant to her request assigned Complainant a pivot in order to ensure that he had enough work to complete in an eight-hour day.3 The Supervisor stated that Complainant was not assigned or approved to work overtime, but was paid for all overtime worked. With respect to claim (2), the AJ observed that Complainant asserted that he submitted a proper request for overtime (PS Form 3996) on April 20, 2013, and therefore he should not have received a Letter of Warning. According to the Supervisor, she issued Complainant the Letter of Warning because he failed to follow instructions by continuing to work unauthorized overtime. The AJ noted that Complainant had previously worked unauthorized overtime on at least eight separate occasions between March 16, 2013, and April 27, 2013. The AJ stated that the Supervisor issued Letters of Warning to other carriers for Failure to Follow Instructions by working unauthorized overtime during the relevant time period. The AJ also noted that in September 2012, Complainant received a Letter of Warning for Failure to Follow Instructions by working unauthorized overtime. Finally, the AJ noted that Complainant filed a grievance concerning the instant Letter of Warning and it was rescinded through the grievance process. The AJ found as to each claim that Complainant failed to establish a prima facie case. According to the AJ, Complainant failed to establish that he was treated less favorably than other similarly situated employees outside of his protected group. The AJ further found that 2 The Agency dismissed one additional claim. Complainant raised no challenges to the Agency's dismissal before the AJ or on appeal; therefore, the Commission will not address that claim in this decision. 3 A pivot is dividing the office and street activity of a route into sections which are assigned to individual carriers. The Agency maintained that pivoting is utilized to cover vacant assignments and to provide auxiliary assistance for an overburdened route. 0120142168 3 Complainant did not present evidence of pretext to refute the reasons presented by the Agency in its Motion for Summary Judgment. On May 1, 2014, the Agency issued a final order fully implementing the AJ’s decision. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) he belongs to 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 his statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or 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). Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis (in this case, his age and prior protected EEO activity). Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. The Commission agrees with the AJ that assuming arguendo he established a prima facie case of discrimination under the alleged bases, Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. With regard to claim (1), the Agency acknowledged that Complainant worked relief overtime for 21 of the 22 dates listed by Complainant for March, April, May and June 2013. The Supervisor stated that Complainant submitted PS Form 3966 for his overtime work and it was not approved. Moreover, the Supervisor asserted that Complainant was not directed to work overtime. The Agency stated that Complainant was assigned parts of other routes, pivots, in 0120142168 4 order to ensure he had work to complete an eight-hour day. We find that the Agency has articulated a legitimate, nondiscriminatory reason for its assignment of routes to Complainant. As for claim (2), the Agency explained that on April 20, 2013, Complainant did not request auxiliary assistance or overtime or otherwise advise management that he would not be able to leave the office on schedule and he worked .65 hours of unauthorized overtime. The Agency stated that Complainant failed to follow instructions by working the unauthorized overtime. We find that the Agency articulated a legitimate, nondiscriminatory reason for issuing Complainant the Letter of Warning. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Finally, to the extent that Complainant is alleging disparate treatment with respect to her claims, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation was a pretext for discrimination or reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. 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 order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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: 0120142168 5 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court 0120142168 6 has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 23, 2016 Date Copy with citationCopy as parenthetical citation