Thomas E. Deline, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionJun 10, 2009
0120073257 (E.E.O.C. Jun. 10, 2009)

0120073257

06-10-2009

Thomas E. Deline, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.


Thomas E. Deline,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120073257

Hearing No. 451-2007-00072X

Agency No. 4G780022206

DECISION

On July 17, 2007, complainant filed an appeal from the agency's June

8, 2007 final order 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 the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405(a). 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 Letter Carrier at the Leon Valley Station of the San Antonio,

Texas Post Office. On September 25, 2006, complainant filed an EEO

complaint alleging that he was discriminated against on the bases of

race (Caucasian), sex (male), and disability (slipped disk, pinched

nerve in his back) when, on numerous occasions between May 1, 2006

and August 25, 2006, his supervisor (S1) harassed him and created a

hostile work environment for him. The harassing incidents to which

S1 allegedly subjected complainant were as follows: (1) telling him

that he needed to change the way he cased his mail; (2) telling him

his medical restriction of working only eight hours and not working

overtime would not be honored; (3) telling him to keep his voice down;

(4) accusing him of walking around; (5) denying his request for a CA-17

form on two occasions; (6) denying him 20 minutes of overtime help for

a meeting with his shop steward; (7) telling him he would be sent for

a fitness-for-duty evaluation; (8) talking to him in a disrespectful

manner; and (9) requiring him to work on his day off.

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). Complainant timely

requested a hearing, which was held May 1, 2007. On May 29, 2007, the

AJ issued a decision finding no discrimination. The agency subsequently

issued a final order implementing the AJ's finding that complainant was

not subjected to discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held. An AJ's

credibility determinations based on the demeanor of a witness or on the

tone of voice of a witness will be accepted unless documents or other

objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

As a threshold matter, in order for complainant to establish a claim of

disability discrimination, he must establish that he is an "individual

with a disability" within the meaning of the Rehabilitation Act.

An "individual with disability" is a person who has, has a record

of, or is regarded as having a physical or mental impairment which

substantially limits one or more of that person's major life activities,

i.e., caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working. See, 29 C.F.R. �

1630.2(j). A physical or mental impairment is substantially limiting when

it prevents an individual from performing a major life activity or when

it significantly restricts the condition, manner, or duration under which

an individual can perform a major life activity. 29 C.F.R. � 1630.2(j).

To establish a claim of harassment based on race, sex, disability, age,

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).

The AJ concluded that complainant failed to prove his prima facie case

of harassment for several reasons. First, the AJ noted that there

was insufficient evidence that any of S1's actions were taken because

of complainant's race, sex, or alleged disability. Second, there was

insufficient evidence to establish that the incidents complained of were

so severe or pervasive that a hostile work environment was created.

In addition, the AJ concluded that the record supports the finding

that complainant was not subjected to a tangible employment action.

Moreover, considering the context in which the incidents occurred,

the AJ was not persuaded that any of the alleged actions were taken

for discriminatory reasons. The AJ concluded based upon the evidence

presented that it was more likely that the tension between complainant and

S1 arose from S1's hands-on management style (which was much different

from the prior manager's style) and complainant's tendency to question

S1's authority. The AJ found no evidence in this case of race, sex or

disability discrimination.

We assume, without so deciding that complainant is an individual with a

disability within the meaning of the Rehabilitation Act. We nevertheless

agree with the AJ that the evidence does not support a finding of

discrimination. We note that the evidence shows that complainant

was never sent for a fitness for duty examination. With respect to

complainant's claim that he was forced to work outside of his medical

restrictions, the preponderance of the evidence establishes that S1

requested medical documentation in support of complainant's alleged

medical restrictions. As soon as the agency received the requested

documentation, complainant's restrictions were accommodated. In addition,

the record supports the finding that S1 did not single out complainant,

but treated all comparison employees in a similar manner. Moreover,

the record is devoid of race, sex, or disability-based animus on the

part of the responsible management official. Accordingly, we AFFIRM

the final agency action.

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, 2009

Date

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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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