0120080644
09-17-2009
Bennie Barr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Bennie Barr,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120080644
Hearing No. 471-2007-00082X
Agency No. 1J-483-0002-07
DECISION
On November 20, 2007, complainant filed an appeal from the agency's
October 18, 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 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
The issues presented are: (1) whether the EEOC Administrative Judge's (AJ)
issuance of a decision without a hearing was appropriate; (2) whether
complainant established that he was subjected to disparate treatment
based on his race, sex, and/or age when he was bypassed for training.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Motor Vehicle Operator at the agency's Vehicle Maintenance
Facility (VMF), Motor Vehicle Service in Detroit, Michigan. The record
reflects that in 2003 and 2004, the agency maintained a "Training
Request" list showing the names of employees interesting in receiving
training for various positions, including Tractor Trailer Operator (TTO).
Complainant's name was not on the 2003 or 2004 lists.
On April 20, 2005, the agency informed VMF employees by notice that
opportunities to train in transportation operations were being accepted.
The notice stated that all interested employees were required to submit
their requests in writing to their supervisors, listing their choices
by preference and briefly describing their qualifications. The notice
also stated that the determining factor to be selected for training would
be seniority between qualified trained personnel. Complainant did not
submit a request for TTO training in writing in 2005.
In late September or early October 2005, the Manager of Human Resources
informed the union that he was instituting new qualifications for
individuals requesting TTO training. The new qualifications required
eligible applicants to have at least six months of experience driving
tractor trailers.
In August 2006, a new employee, who had transferred to the VMF in March
2005, received TTO training. Complainant complained to union officials
that management had allegedly bypassed him for TTO training.1 He was
subsequently informed by management officials that he would be provided
with TTO training after he submitted documentation that he had the
required six months of experience driving tractor trailers. On August
3, 2006, complainant submitted verification of his driving experience,
and he received TTO training in September 2006.
Complainant filed an EEO complaint, dated January 5, 2007, alleging that
he was discriminated against on the bases of race (African American),
sex (male), and age (58 years old at the time of incident) when, on
August 31, 2006, he became aware he had been bypassed for TTO training.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation and a notice of his right to
request a hearing before an AJ. Complainant timely requested a hearing.
Over the complainant's objections, the AJ assigned to the case granted
the agency's July 11, 2007 motion for a decision without a hearing
and issued a decision without a hearing on October 11, 2007. The AJ's
decision found that complainant failed to establish a prima facie case
of race, sex, or age discrimination. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Neither complainant nor the agency submitted a statement on appeal.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists or that there are credibility issues such that
a hearing on the merits is warranted.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
race, sex, and age discrimination, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The Supervisor,
Transportation Operations (STO) submitted an affidavit stating that
complainant was not selected for TTO training in 2003 or 2004 because
he was not on the training request lists, and he declined an opportunity
to receive training in 2005.2 STO further stated that the new employee
was given training before complainant in 2006 because the new employee
transferred into a TTO position, and he was given local TTO training
based on the needs of the service. The Manager submitted an affidavit
stating that complainant never asked to be on the training request lists
in 2003, 2004, or 2005, and the new employee was already a licensed
TTO when he transferred to the VMF. The Manager also stated that,
after complainant complained to the union that he had been bypassed for
TTO training, management agreed to provide him with TTO training once
he provided documentation that he had sufficient experience driving a
tractor trailer.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we concur with the AJ's determination that
complainant failed to provide any evidence of pretext in the record.
Furthermore, we find that the record is devoid of any evidence that
the agency's actions were motivated by discriminatory animus towards
complainant's race, sex, or age. Complainant argued below that agency
officials unfairly allowed two similarly situated Motor Vehicle Operators
outside his protected classes to receive TTO training ahead of him prior
to 2006 even though he was on the training request lists and had seniority
over both of the employees. However, the record contains copies of the
training request lists from 2003 and 2004, and complainant's name was
not on either of the lists. In contrast, both of the comparators' names
were on the lists, and, as a result, they received training before him.
Complainant also argued that the new employee should not have been allowed
to receive training before him in August 2006, but the new employee was
not similarly situated to complainant because he was already a TTO when
he transferred to VMF. Moreover, there is no evidence complainant ever
submitted a written request for TTO training or documentation establishing
that he had six months of experience driving tractor trailers prior to
August 2006.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant also failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus towards him. We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, the agency's final
order is AFFIRMED.
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
______9/17/09_____________
Date
1 Complainant did not file a grievance regarding the alleged denial of
training.
2 STO stated that a training request list was not established in 2005
until the agency had exhausted the list from 2004. He stated that
there was no volunteer list posted for 2006 because management opted
to provide training to individuals on lists from previous years who had
not yet received their requested training.
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0120080644
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080644