Victor Jones, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 17, 2009
0120080704 (E.E.O.C. Dec. 17, 2009)

0120080704

12-17-2009

Victor Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Victor Jones,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 0120080704

Hearing No. 480-2006-00268X

Agency Nos. 4F-913-0041-06; 4F-913-0075-05; 4F-913-0122-06

DECISION

On November 20, 2007, complainant filed an appeal from the agency's

October 19, 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 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

order.

ISSUES PRESENTED

Whether the AJ's findings that complainant did not establish that his

Emergency Placement in an Off-Duty Status and subsequent termination

were discriminatory, are supported by substantial evidence in the record.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a letter carrier at the Palmdale, California Post Office. Complainant

filed EEO complaints on October 12, 2005, March 6, 2006 and August 16,

2006 (which were consolidated), alleging that he was discriminated

against on the bases of race (Black), disability (on-the-job foot

injury/bilateral plantar fasciitis), and reprisal for prior protected

EEO activity [arising under Title VII and Rehabilitation Act] when:

(1) on or about June 14, 2005 through July 16, 2005, he was subjected

to a hostile work environment; 1

(2) in December 2005, he was continually scheduled to start later than

other carriers, preventing him from being more proficient on the job;

(3) he was issued a 14-day suspension on December 28, 2005;

(4) on February 4 through 22, and April 10, 2005, the agency refused to

comply with his medical restrictions; 2

(5) he was issued a 14-day suspension on February 7, 2006;

(6) he was placed on administrative leave on February 23, 2006, and as

of March 22, 2006 had not received documentation regarding the action

and his pay was delayed during this period;

(7) he was issued instructions for a fitness-for-duty exam on March 15,

2006;

(8) on May 16, 2006, he was denied time on the clock to prepare a response

on an EEO complaint;

(9) on April 12, 2006 and ongoing, as a senior PTF, he was not assigned

to work more than eight hours a day or 40 hours a week;

(10) on May 3, 2006, he was verbally threatened by a 204B by being told

he was the stupidest and dumbest black employee;

(11) on June 2, 2006, he was issued a notice of emergency suspension; and

(12) on July 20, 2006, he was issued a notice of removal dated July 14,

2006.

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 and the AJ held a hearing July 11, 2007 and issued

a decision on October 2, 2007.

AJ Decision

At the outset, the AJ, among other things, found that complainant was

not an individual with a disability as he did not show that he was

substantially limited in any major life activity. The AJ did find,

however, that complainant had established a prima facie case of reprisal

discrimination, noting, in part, that complainant had prior EEO activity,3

about which management was aware. Addressing issue (1), the AJ found

that complainant did not establish that management's alleged conduct

was motivated by his race or prior EEO activity.

The AJ found as to issue (2), that complainant was the only PTF who

never started before 9 a.m., but since there were other Black PTFs who

started early, one of whom had the same seniority date as complainant,

there was no reason to conclude that his start time was based on race.

Thus, the AJ found no prima facie case based on race. Furthermore, the

AJ did not find complainant to be aggrieved in that the record showed

he worked more than 40 hours per week during this period. Additionally,

the AJ noted that although complainant argued that his later start time

prevented him from becoming more proficient in his job, no evidence was

presented to support that assertion. The AJ also found no evidence of

a retaliatory motive.

Addressing issue (3), the AJ found that on December 28, 2005, a temporary

204B supervisor issued a 14-day no-time-off suspension to complainant,

charging him with Failure to Follow Instructions/Unacceptable Conduct

based on an incident that took place on December 22, 2005. According

to the 204B, on that day, he gave complainant an instruction to which

complainant replied that he was just a 204B, not a supervisor. The AJ

found that complainant then yelled across the room that the 204B could

not tell him what to do. Another carrier (Hispanic), told complainant to

follow management's instructions, which complainant did. Complainant then

went to the carrier's case and called the Hispanic carrier an "asshole."

The AJ noted that in complainant's version of the events, the 204B said

to him, "Just because some people wear the uniform doesn't make them a

mailman." Complainant stated that he responded by telling the 204B that

because of his hostile actions, some "asshole" had just demeaned him.

He denied refusing to follow instructions. However, the AJ found no

evidence that the agency disciplined complainant because of unlawful

motives.

As to issue (4), the AJ found that this claim constituted an impermissible

collateral attack on the Department of Labor's workers' compensation

determination, and was subject to dismissal.

As to issue (5), the AJ found that on February 7, 2006, complainant was

issued a 14-day suspension for expanded street time and demonstrated poor

performance on February 3, 2006. Among other things, a supervisor (S2)

cited the fact that complainant said he took a 30-minute lunch break and

a 10-minute break contrary to instructions that employees scheduled to

work fewer than six hours, as complainant was, were not to take a lunch

break. Complainant was only given 1.75 hours of deliveries that day.

The AJ found that complainant did not establish pretext as to this

issue.

As to issues (6) and (7), the AJ found that P1 placed complainant

on administrative leave on February 23, 2006, pending a fitness for

duty examination (FFD), because of what he described as complainant's

"bizarre" behavior. Complainant returned to duty on April 10, 2006.

The union filed a grievance on complainant's behalf because he was not

properly paid for the time he was off, and that grievance was resolved by

ordering that he be fully paid. The AJ further found that, on March 14,

2006, complainant was issued a notice that he was scheduled for an FFD

exam on March 27, to determine the status of his psychiatric condition.

On April 6, the agency's Medical Consultant summarized the results of

the FFD exam, stating that complainant's workplace conflicts were found

to be of a non-medical nature and should be resolved administratively.

He released complainant to return to work without restrictions. The AJ

found no evidence of discrimination.

As to issue (8), the AJ found no discrimination with regard to

complainant's claim that, on May 16, 2006, he was denied time on the

clock to prepare a response to an EEO complaint.

As to issue (9), complainant alleged that on April 12, 2006 and ongoing,

as a senior PTF, he was not assigned to work more than eight hours per day

or 40 hours per week. The AJ found that complainant and another carrier

(C1) have the same seniority date and are junior to all but one PTF.

The AJ noted that, as a PTF, complainant is not guaranteed 40 hours per

week or 8 hours per day. Although the record indicates that complainant

worked the least number of hours and least amount of overtime of the

PTFs in his pay location for the period of April 10 to June 16, 2006,

the AJ found, however, that during this period complainant's doctor

restricted him from walking more than four hours per day and complainant

stated that he may have declined some overtime.

Addressing issue (10), the AJ noted complainant's allegation that he was

told by S1 that he was the "stupidest" and "dumbest black employee." On

that day, complainant said he took six hours to deliver a two-hour route.

When he returned to the office he told S1 that he got lost on the route

and that his vehicle was defective. He also indicated that his doctor

authorized him to walk slowly. According to complainant, S1 became angry

and called him names. The AJ noted that S1 denied making the comments.

He maintained that complainant had taken four hours to deliver a one-hour

route and that when he returned to the office, he told complainant that

his performance was very poor for a carrier with 25 years of experience.

Complainant's response, according to S1, was to whistle and walk away.

The AJ found that, given the fact that there were no witnesses to this

incident, complainant was unable to establish discrimination.

As to issue (11), S1 issued an Emergency Placement in Off-Duty Status

to complainant, confirming the oral instructions given to him on May 30

that he was being placed in the status without pay. The AJ noted that

the reason given for the agency's action was that a customer complained

that complainant had demonstrated unacceptable conduct toward her

minor daughter while in the performance of his duties. Complainant was

advised that his actions appeared to have violated postal policies and

procedures regarding unacceptable conduct. The notice further stated,

"It is believed that retaining you in a duty status could result in injury

to yourself or others." P1 concurred in the decision. S1 stated that he

had never placed another employee in an emergency off-duty status under

similar circumstances. The AJ found no evidence of a discriminatory

motive.

As to issue (12), the AJ found that on July 14, 2006, S1 issued a

Notice of Removal to complainant, charging him with "Failure to Follow

Instructions/Unacceptable Conduct." Complainant was specifically charged

with violating Section 665.16 of the Employee and Labor Relations Manual

(ELM) relating to Unacceptable Conduct, citing his conduct toward the

minor female. S1 then cited complainant's responses to the charges

given during an investigative interview (also known as a fact-finding),

stating, "Your responses are unacceptable and fail to provide a reasonable

explanation for your conduct. Your actions in this regard constitute

extremely egregious conduct and warrant your removal from the Postal

Service." S1 noted that the minor female was 17 and complainant was

48 years old and that complainant gave the minor a card that had sexual

overtones.

The AJ found that, in attempting to establish pretext, complainant focused

on his good intentions in bringing the gifts to the minor girl, and his

belief that he was friends with her family. The AJ found, however, that

the agency was simply responding to the complaints of the postal customers

and their statements that complainant's behavior was not welcome and

that he had been put on notice previously to stay away from the daughter.

The AJ found the agency had a good faith belief that complainant had acted

improperly based on the minor female's parents' statements and the words

written on the cards, which complainant did not deny. The AJ found that

complainant failed to establish, by a preponderance of the evidence, that

the agency removed him in retaliation for his prior EEO complaints.

The agency subsequently issued a final order adopting all of the AJ's

finding that complainant failed to prove that he was subjected to

discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant mostly reiterated his version of some of the facts

concerning the incident with the minor female involved in his Emergency

Placement in Off-Duty Status and his termination, i.e., issues (11)

and (12). He did not specifically challenge the AJ's findings of no

discrimination concerning issues (1) - (10).

In reply, the agency asserts that complainant has offered no new facts or

legal argument that justify overturning the findings or decision issued

by the AJ. The agency therefore requests that the Commission uphold the

final order and issue a finding of no discrimination or retaliation in

favor of the agency.

ANALYSIS AND FINDINGS

We note that the Commission has the discretion to review only those

issues specifically raised in an appeal. Equal Employment Opportunity

Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999).

Given that complainant is only contesting the AJ's findings with regard

to his emergency placement in an off-duty status and his termination,

we will only address issues (11) and (12) in the decision herein.

Accordingly, the agency's findings of no discrimination regarding issues

(1)-(10) are AFFIRMED.

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 determination 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).

In the absence of direct evidence of discrimination, the allocation

of burdens and order of presentation of proof in a Title VII or

Rehabilitation Act case alleging discrimination is a three-step process.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see

Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,

425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to retaliation cases). First, complainant

must establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination; i.e., that a prohibited consideration was a factor in the

adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next,

the agency must articulate a legitimate, nondiscriminatory reason(s)

for its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). If the agency is successful, then the complainant

must prove, by a preponderance of the evidence, that the legitimate

reason(s) proffered by the agency was a pretext for discrimination.

Id. at 256.

Here, assuming complainant could establish a prima facie case of

discrimination based on race, disability and/or reprisal as to issues

(11) and (12), the agency articulated legitimate, nondiscriminatory

reasons for its actions. Specifically, it was management's belief,

based on information provided by a postal customer, that complainant

had inappropriate interactions with a minor female while on duty.

Management also noted that regardless of his intentions, complainant

had been warned previously to stay away from the girl. On appeal,

complainant, for the most part, argued that S1 and P1 were not credible

with respect to certain aspects of their testimony regarding their

interview of the minor's parents;4 that the family did not testify at

the hearing and that there was no evidence that the family had filed a

complaint or were requesting that he be fired; that the local police or

postal inspectors were not notified of his actions; that he did not know

the age of the minor; and that the agency used his gift to the minor as a

means to retaliate and terminate him. Upon review of the record, we find

that there is substantial evidence in support of the AJ's conclusion that

complainant did not establish pretext. As noted by the AJ, complainant

does not deny that he engaged in the conduct at issue nor did he provide

evidence of similarly situated individuals from outside of his protected

groups who were treated differently after engaging in similar conduct.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the final

order.

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

_____12/17/09_____________

Date

1 Specifically, complainant alleged that on either June 14 or 21, 2005,

his supervisor (S1) was upset because he yelled at her and allegedly

threatened to have her job, and as a result she told the Postmaster (P1)

in front of others that she did not want to be alone with complainant.

Complainant considered that to be a humiliating statement and a

personal attack on him. Complainant also alleged that on July 7,

he was issued a 14-day suspension based on incidents on June 14, 15,

16, and 17, in which he allegedly failed to follow S1's instructions

and raised his voice and yelled at S1. Complainant states that, on

July 12, he was issued a Letter of Warning for failing to deliver an

express mail package. Complainant stated that he called in from the

street that day to ask for assistance because his feet were very sore.

A casual was sent out to finish his deliveries and complainant did not

notice that he had an express mail package. In addition, on July 16,

complainant was issued a 7-day suspension for incurring 28 minutes of

penalty overtime. Management stated that complainant called in from the

street to ask for an additional one hour and 10 minutes, and that time

was authorized, however, he then used another 28 unauthorized minutes,

which put him into penalty overtime.

2 Complainant essentially asserts that although his medical documentation

indicated that he could not walk as quickly as the other carriers due

to his on-the-job injury, he was still expected to do so.

3 The AJ noted that complainant had filed approximately 183-EEO actions

prior to those which are the subject of this decision, most of which

were informal complaints filed in 1992. AJ Decision at 11.

4 According to complainant, P1 testified that he was unaware that

complainant was the carrier who had given the gift to the minor when he

interviewed her parents. Complainant stated that S1, who was present

during the interview, stated that he and P1 were aware that complainant

was the carrier. Complainant maintained that P1 was "targeting" him.

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0120080704

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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