0120072789
07-01-2009
Charles B. Hebb, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles B. Hebb,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072789
Hearing No. 100200500853X
Agency No. 4K200048304
DECISION
On April 13, 2007, complainant filed an appeal1 from the agency's June
21, 2007 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At all times relevant to this complaint, complainant was employed as a
City Carrier at the agency's Southwest Station Post Office in Washington,
D.C. Since 1995, complainant has been in limited-duty status, which is
provided only for employees who have physical restrictions that result
from work-related injuries. Complainant works with at least three female
co-workers who are also in limited-duty status.
Complainant asserts that in August 2004, his supervisor showed preference
towards a limited-duty female employee because he provided her with
daily assignments, such as processing passports, and would not provide
complainant with the same. The supervisor stated that complainant's job
is to case and deliver routes, not process passports. The supervisor
further stated that the female employee was permitted to assist the
clerks in processing passports because she had specific training in
processing passports.
Complainant further alleges that his supervisor failed to provide him with
an equal amount of overtime hours as compared to the other limited-duty
female employees. Specifically, limited-duty employees are occasionally
provided overtime to work in the "accountable cage" when a clerk is not
available to work in the cage. The supervisor stated that complainant
was not always available when overtime was available, and when complainant
was available he was assigned the overtime. The supervisor further
asserted that an individual was recently hired to fill a vacant clerk
position, which eliminated the need for overtime.
Complainant initiated EEO Counselor contact on August 19, 2004.
In September 2004, complainant and the agency entered into a settlement
agreement. Subsequently, complainant asserted that the agency breached
the settlement agreement, and in April 2005, complainant was given a
Notice of Final Interview and a Right to File a Formal Complaint.
On April 6, 2005, complainant filed a formal EEO complaint of
discrimination on the basis of sex (male) when:
1. in August 2004 and continuing, he has been denied a reasonable
accommodation because he has been denied a daily job duty assignment; and
2. in August 2004 and continuing, he has been denied overtime.
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 requested
a hearing. On April 6, 2007, the AJ remanded the complaint back to the
agency for a final decision after complainant failed to appear at the
hearing and failed to show good cause for his absence. On June 21, 2007,
the agency issued a final decision, finding that complainant failed to
establish by a preponderance of the evidence that discrimination existed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
As an initial matter, we find that the AJ's remand of the complaint for
a final agency decision was appropriate. While complainant alleges that
he was not notified by the agency of the hearing date, we agree with
the AJ that the record establishes that complainant did not display a
genuine effort to engage in good faith in the hearing process. The record
establishes that complainant failed to respond to the agency's motion for
summary judgment, failed to adequately respond to the Scheduling Order,
failed to adequately respond to the AJ's requests made via telephone,
and failed to appear for the hearing. Therefore, the AJ's remand of
the complaint was appropriate.
Here, complainant asserts that he was not reasonably accommodated when he
was denied daily job duty assignments. We note that an agency only has
a duty to reasonably accommodate an employee's sincerely held religious
belief or an employee's disability. See 29 C.F.R. � 1605.2(b)(1); 29
C.F.R. � 1630.9. Here, complainant does not allege religion or disability
as a protected basis. Therefore, we will treat this claim as a disparate
treatment claim alleging discrimination on the basis of his sex.
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 or
she 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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
The McDonnell Douglas analytical paradigm need not be adhered to in all
cases. In appropriate circumstances, when the agency has articulated
legitimate, nondiscriminatory reasons for its conduct, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, i.e., whether the complainant has proven by the
preponderance of the evidence that the agency's explanations were pretext
for discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983). Here, the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Therefore, we
will assume without so finding that complainant established his prima
facie cases of race and reprisal discrimination.
The agency articulated legitimate, non-discriminatory reasons for
the claim that it denied complainant daily assignments and overtime.
Specifically, complainant's supervisor stated that complainant's job is
to case and deliver routes. He stated that complainant was once denied
a passport assignment, but that is because the processing of passports
is generally the responsibility of the clerks. The supervisor further
stated that he did not recall denying complainant overtime in August
2004. Additionally, the supervisor stated that complainant occasionally
worked overtime in the cages, and an individual was recently hired to
fill a vacant clerk position, which eliminated the need for overtime.
The supervisor reiterated that complainant's sex had nothing to do with
any of his employment decisions.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, nondiscriminatory reasons were pretext
for discrimination. The record reveals that the passport assignment was
generally assigned to clerks, and that while a female City Carrier was
permitted to assist the clerks in passport processing, it was because
she had specific training in the processing of passports. The other
female limited-duty employees were also denied the opportunity to
process passports. The record also reveals that complainant was not
always available when overtime was available, and that complainant was
occasionally assigned overtime. Additionally, the record establishes
that the other female limited-duty employees were also inconsistently
and only occasionally assigned overtime, and were sent home when they
were not needed. The record is devoid of any evidence that would suggest
that discriminatory animus towards complainant's sex more likely than not
played a role in any agency action. Therefore, we find that complainant
failed to establish that the agency's legitimate, nondiscriminatory
reasons were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
agency's final decision, because a preponderance of the evidence of
record establishes that discrimination did not occur as alleged.
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
July 1, 2009
Date
1 We note that complainant prematurely filed this appeal before the
agency issued a final decision. However, the agency subsequently issued
a final decision, and so complainant's appeal is now perfected.
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0120072789
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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