Alex W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20160120140269 (E.E.O.C. Jan. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alex W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120140269 Hearing No. 532-2013-00027X Agency No. 4C-450-0098-12 DECISION Complainant filed an appeal from the Agency’s final order dated September 26, 2013, finding no discrimination with regard to his 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. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In his complaint, dated August 24, 2012, Complainant alleged discrimination based on sex (male) and age (over 40) when: (1) on May 9, 2012, he was issued a five-day suspension for failure to follow instructions/failure to maintain satisfactory work schedule/improper conduct;2 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. and (2) on July 25, 2012, his PS Form 3996 was disapproved and he was yelled at and ordered off the clock. Upon completion of the investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On 2 It is noted that although Complainant initially claimed that he received a 10-day suspension, the record indicates that he act ually r eceived a five-day s uspension during the r elevant ti me p eriod a t is sue. C omplainant d oes n ot dispute this. 0120140269 2 September 18, 2012, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents. During the relevant time period at issue, Complainant was employed as a city letter carrier at the Agency’s Post Office, South Columbus Station in Columbus, Ohio. With regard to claim (1), Complainant’s acting manager (M1) indicated that M1 issued him the notice of five-day suspension at issue on May 24, 2012, which was approved by Complainant’s manager (M2). The record indicates that the subject suspension was subsequently reduced to a letter of warning via a grievance. Specifically, M1 (Black, male, 42 years of age) stated that on April 27, 2012, M1 assigned overtime at issue to Complainant, who was on the overtime desired list, in order to avoid unnecessary penalty overtime, i.e., double time per hour. M1 indicated that Complainant, however, refused the overtime assignment and told M1 by tapping M1’s shoulder that “well I’m going to just leave and see how you handle that, boy.” When M1 asked Complainant whether it was a threat, he told M1 “take it how you want to, boy.” Complainant then left work. Complainant acknowledged making the foregoing comments. Complainant claimed that on April 23, 2012, he previously talked to M2 and his supervisor (S1) who agreed he would work his route only and not overtime for the following two weeks because he needed to take care of his wife who recently had a broken right ankle and his eight- year old daughter at home. M2 and S1 denied making any agreement with Complainant as he claimed. S1 indicated that when Complainant asked her about performing only his route, she 0120140269 3 advised him that she would attempt to work with him but he would need to either remove himself from the overtime desired list or request a change of schedule. Complainant did neither. With regard to claim (2), M2 indicated that on July 25, 2012, she disapproved Complainant’s PS Form 3996, i.e., a form used to request auxiliary assistance or overtime on a route, because he did not have enough workload to work overtime on that day. Specifically, M2 stated that she told Complainant to be back by 4 pm since it was his day off and if he had worked more than 8 hours, he would have been in penalty overtime. Later that day, indicated M2, Complainant’s closing supervisor (S2) came to M2 and told M2 that Complainant was giving S2 a hard time and not following S2’s instructions to clock out and go home. M2 stated that she then told Complainant that M2 was giving him official instructions to clock out and go home. M2 stated that Complainant then clocked out 5 clicks before 8 hours, and as a result, another city carrier carried his returned mail on that day. Complainant claimed that on the incident date, when he came back with his mail, S2 told him that “you can’t do your job, I’ll find somebody who can” and told him to clock out and get off the floor after following him around the office while he was disbursing return and outgoing mail. S2 denied making the comments, described by Complainant. Specifically, S2 indicated that when Complainant came back with his mail on the incident date, Complainant was deliberately taking his time with his accountable and S2 told him to hurry up and get off the clock so he would not go into penalty overtime. S2 stated that Complainant yelled at him and told him to get out of his space. Complainant acknowledged that he did not receive any disciplinary action for this incident. After a review of the record, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. With regard to his claim of harassment, we find that Complainant failed to establish that it was related to any protected basis of discrimination. Furthermore, we find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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: 0120140269 4 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, 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 (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 has the sole discretion to grant or deny these types of requests. Such requests do not alter the 0120140269 5 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 January 29, 2016 Date Copy with citationCopy as parenthetical citation