0120082583
08-07-2008
Kevin Riley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kevin Riley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082583
Agency No. 4J-482-0112-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 14, 2008 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.
During the relevant time, complainant was employed as a City Carrier at
the agency's Highland Park Branch in Highland Park, Michigan.
On October 27, 2007, complainant filed the instant complaint. Therein,
complainant claimed that he was subjected to harassment and a hostile
work environment on the basis of reprisal for prior EEO activity when,
including but not limited to1:
(1) on June 5, 2007 and subsequent dates, he was charged Absent Without
Leave (AWOL);
(2) on June 29, 2007, he did not receive a pay check for all of the time
he was out on leave; and
(3) he was issued a Notice of Removal dated August 20, 2007.2
The record reflects that on June 1, 2007, complainant incurred an
on-the-job injury, which resulted in him being sent to the agency
clinic for treatment. Complainant was treated and cleared to return to
his work station on the same day. The record further reflects that on
June 4, 2007, complainant did not report to work because he went to see
his physician. Complainant failed to call the Integrated Voice Response
(IVR) system to notify his supervisors that he would be absent and did not
return to work with medical documentation until June 8, 2007. The record
reflects that complainant later called in to the IVR system requesting
to be off from June 11, 2007 to June 19, 2007. Upon his return to work,
complainant failed to submit the necessary documentation for his absence.
On June 29, 2007, complainant informed an Acting Supervisor (AS) that he
was leaving work, and the AS informed complainant that if he left work,
he would be charged with abandoning his assignment but complainant left
anyway. Consequently, complainant was charged with 22.69 hours of AWOL
and 56 hours of Leave Without Pay (LWOP).
At the conclusion of the investigation, complainant was provided with
a copy of the report of the investigation and notice of the right to
request a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did
not respond. On April 14, 2008, the agency issued the instant final
decision.
In its April 14, 2008 final decision, the agency found that complainant
did not establish a prima facie case of disparate treatment and harassment
based on retaliation. The agency further found that assuming, for the
sake of argument, complainant established a prima facie case, management
articulated legitimate, nondiscriminatory reasons for its actions which
complainant failed to show were a pretext.
Regarding claim (1), complainant's second-level supervisor (S2) denied
subjecting complainant to harassment. S2 further stated that complainant
never raise his harassment claim to her attention. S2 stated that in
regard to complainant's AWOL claim, complainant was charged AWOL on
June 5 and 7, 2007 because "he did not report to work and he did not
call in." S2 stated that complainant was also charged AWOL on June
29, 2007 because "he completed a Form 3971 requesting leave and it was
disapproved and returned to him, but he left work anyway." S2 stated
that complainant was charged AWOL by his immediate supervisor (S1)
and that she supported S1's decision to charge complainant with AWOL.
S2 stated that during the relevant time, an identified employee under her
supervision was also charged with AWOL for similar reasons. Furthermore,
S2 stated that complainant's prior protected activity was not a factor
in management's decision to charge him AWOL.
Regarding claim (2), S1 stated that from June 11, 2007 to June 19, 2007,
she put complainant on a LWOP status because "the paperwork he turned
in for his absence was not administratively acceptable."
S2 stated that complainant "did receive a pay check, but it was only
a partial one because he had 32 hours of leave without pay (LWOP).
He had the LWOP because he was charged with AWOL for the reasons stated
above."
Regarding claim (3), S2 stated that she was the concurring official
concerning complainant's Notice of Removal. Specifically, S2 stated that
the Notice of Removal was issued to complainant "based on his attendance
and his failure to follow instructions, as stated in the Notice.
I signed the Notice as the Reviewing Authority." S2 stated that she
relied on Sections 511.41 "Definition," 513.364 "Medical Documentation
or other Acceptable Evidence," 513.365 "Failure to Furnish Required
Documentation," 665.15 "Obedience to Orders," and 665.41 "Requirement
of Regular Absence" of the Employee and Labor Relations Manual (ELM)
in her concurrence to issue complainant a Notice of Removal.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not
prove were a pretext for discrimination, and that complainant has not
demonstrated that these reasons were a pretext for discrimination.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Id.
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements 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 (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 7, 2008
Date
1 For purposes of clarity, the Commission has numbered complainant's
claims as claims (1) - (3).
2 The record reflects that as a result of a union grievance, the August
20, 2007 Notice of Removal was rescinded.
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0120082583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120082583