0120071045
06-09-2009
Dellwin Jenkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dellwin Jenkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071045
Hearing No. 480200600002X
Agency No. 1F891002105
DECISION
On December 8, 2006, complainant filed an appeal from the agency's
November 1, 2006 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 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
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Tractor Trailer Operator at the agency's Chicago Processing and
Distribution Center (PDC). Complainant had transferred from the Las
Vegas PDC to the Chicago PDC on November 23, 2003, per his request.
On or about March 29, 2005, complainant requested a transfer back to the
Las Vegas PDC. On May 5, 2005, the Manager of the Las Vegas PDC denied
complainant's transfer request on the stated basis of complainant's past
unacceptable work performance.
On August 1, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American),
disability (diabetes), age (48 at time of incident), and in reprisal
for prior protected EEO activity when his request for a transfer from
the Chicago PDC back to the Las Vegas PDC was denied.
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 August 10, 2006, the agency moved for summary judgment.
The AJ determined that a decision without a hearing was appropriate,
and on September 28, 2006, issued a decision in favor of the agency over
complainant's objection. In determining that there were no disputes of
material fact, the AJ noted that all of the persons to whom complainant
compared himself were older than complainant; none had the same work
record; and complainant's prior EEO activity occurred two years before
the incident in question. The AJ also noted that complainant failed to
cooperate in the investigation of his complaint, including not submitting
an affidavit in support of his complaint. 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
Complainant did not file a brief in support of this appeal.
The agency reiterates its argument, raised below, that complainant's
prior record provided sufficient reasons to reject his request to return
to the Las Vegas PDC.
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.
Here, we find that the record was appropriate for summary judgment
because, considering the evidence in the light most favorable to
complainant, there exists no genuine issue of material fact to be
determined at a hearing.
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).1 The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
a legitimate and nondiscriminatory reason for its conduct. See 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 a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000).
The agency explained that it denied complainant's request for a transfer
back to the Las Vegas PDC on the basis of complainant's past unacceptable
work performance. More specifically, the Manager, Transportation and
Networks, (MTN) at the Las Vegas PDC stated that she denied complainant's
request to transfer back the Las Vegas "because his work performance
(primarily attitude) was unacceptable. [Complainant] chooses not to
get along with anyone. He often engaged in bullying behavior with his
co-workers, management and customers." MTN continued:
[Complainant] transferred from Chicago to Las Vegas about 10 years ago.
The entire time he was in Las Vegas he was uncooperative with his
supervisors, rude and bullying to his co-workers, intimidating to his
customers, etc. His work performance was minimal at best. He could
successfully get the load of mail from Point A to Point B without
getting in a motor vehicle accident but that was all. He created a
hostile work environment on numerous occasions. [Complainant] would
do something he shouldn't, receive discipline, then put in a request to
transfer somewhere else. The former Transportation Managers would remove
the discipline from [complainant's] personnel folder in the hope that
the other facility would accept [complainant's] request to transfer.
As soon as the former Transportation Managers removed [complainant's]
discipline from his file [complainant] cancelled his request to transfer.
This happened at least 5 times that I know of. I refused to play this
game and left [complainant's] latest Letter of Warning in his file
when it was sent to Chicago for review. The supervisor's evaluation
completed by Herbert Spratling, the complainant's supervisor at the time,
was clearly marked Unacceptable Attitude. Chicago accepted him anyway,
even with the Letter of Warning and supervisor's evaluation. A final
comment - when I evaluate an employee's records to determine whether or
not to accept their transfer request, I have a responsibility to select
employees with good work, attendance and safety records.
We note that although complainant was afforded the opportunity to submit
an affidavit during the investigation of his complaint, he did not do so.
At the time the matter came before the AJ, there was, and there remains,
no genuine issue of material fact regarding the denial of his request to
transfer back to Las Vegas. Considering the evidence of record in the
light most favorable to complainant, we find that complainant failed to
establish his claim of discrimination.
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 tends 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
June 9, 2009
Date
1 For the purpose of this analysis, we will assume, without so finding,
that complainant is an individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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