0120080738
07-07-2009
Jack R. Pope, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (New York Metro), Agency.
Jack R. Pope,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(New York Metro),
Agency.
Appeal No. 0120080738
Hearing No. 520-2007-00410X
Agency No. 4A-100-0034-07
DECISION
On November 27, 2007, complainant filed an appeal from the agency's
October 31, 2007 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a city carrier at the agency's Morgan Station, New York facility.
The record reveals that complainant took leave under the Family and
Medical Leave Act (FMLA) from June 21, 2006 until August 1, 2006.
Upon his return to work, complainant advised the agency that he would
retire in early 2007.
On January 30, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of disability (cancer) when
on November 13, 14, 15, 16, and 18, 2006, his supervisor harassed him,
which forced complainant to retire a month earlier than planned.
In an investigative affidavit, complainant stated that on November
13, 2006, he asked his supervisor if he could change his tour, but the
supervisor denied his request. Complainant also stated that he delivered
all of the mail for his route and mail for another route. Complainant
further stated that on November 15, 2006, someone told his supervisor
that he returned undelivered mail to the office the previous day, and
the supervisor told complainant, "Why don't you retire, we don't need
you here." Complainant also stated that on November 15, 2006, he again
delivered the mail on his route, but on November 16, 2006, his supervisor
again said that someone reported that complainant had returned mail to
the facility. Complainant stated that his supervisor also stated, "Why
don't you retire, we do better when you were out." Complainant further
stated that he was on leave from November 21 until 28, 2006, and when he
returned to work, his workload was so heavy that it seemed as if no one
had worked his route while on vacation. Complainant stated that when he
informed his supervisor about the condition of his route, the supervisor
ordered him "to do your route or go home." Complainant took sick leave
the next day and retired from the agency effective December 1, 2006.
Complainant's supervisor stated that he informed employees that if
they wanted a schedule change in November or December 2006, they
had to submit the request in writing to the Manager because of the
increased parcel volume and dock congestion during that time of year.
The supervisor further stated that he approved a change of schedule for
complainant from October 23, 2006, to November 3, 2006, but complainant
did not submit a written request for a change of schedule after November
3, 2006. The supervisor stated that another carrier who was granted a
schedule change in November and December 2006 properly submitted a Form
3189 request. The supervisor further stated that on November 14, 2006,
complainant was not on the overtime list, although his route had heavy
volume on that date. The supervisor stated that on November 15, 2006, he
asked complainant and other carriers if they returned undelivered parcels
to the facility. He further stated that he complainant said that he was
going to retire, and the supervisor responded "if you want to retire,
retire." The supervisor also stated that that on November 16, 2006, the
night clerk told him mail had been returned, and the supervisor asked
complainant and other carriers about the mail. The supervisor stated
that complainant had been complaining for the previous couple of weeks
and stated, "What are you going to do when I retire?" The supervisor
stated, "I said nothing." Regarding the November 28, 2006 incident, the
supervisor stated that complainant did not request auxiliary assistance
on that date and worked 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 timely
requested a hearing. On August 17, 2007, the agency moved for a
decision without a hearing. In a decision dated October 25, 2007,
the AJ issued a decision without a hearing in favor of the agency.
The AJ found that complainant was not an individual with a disability,
failed to show that the alleged actions were severe or pervasive enough
to constitute harassment, and failed to prove that the alleged actions
were so intolerable as to constitute constructive discharge. The agency
subsequently issued a final order adopting the AJ's findings.
CONTENTIONS ON APPEAL
In a three-sentence appeal statement, complainant contends that three
witnesses would not testify on his behalf because "it would be a conflict
of interest." The agency requests that we affirm its final order.
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").
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).
Complainant's claim that he was denied a requested schedule change can
be analyzed as a disparate treatment claim. To prevail in a disparate
treatment claim, 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment, complainant must show that: (1) he
is a member of the statutorily protected class; (2) he was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on
the statutorily protected class; and (4) the harassment affected a
term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment. Humphrey
v. United States Postal Service, EEOC Appeal No. 01965238 (October
16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems. Inc., EEOC Notice No. 915.002 (March 8, 1994). Further,
the incidents must have been "sufficiently severe and pervasive to
alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must also
show that there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In this case, we assume arguendo that complainant established a prima
facie case of disability discrimination and is a qualified individual
with a disability.1 We further assume that complainant's version of the
relevant events is accurate. Complainant alleges that he was subjected
to harassment when in November 2006, his supervisor denied his request
for a schedule change, asked complainant why he did not retire, ordered
complainant to do his work or go home, and complainant to deliver mail
from another route. We find that complainant's claim of discriminatory
harassment is not supported by the record because the agency provided
legitimate, nondiscriminatory explanations for the alleged actions,
and complainant failed to provide any evidence from which a reasonable
fact-finder could conclude that the agency's explanations are pretextual.
Complainant contends that a co-worker was granted a schedule change
in November 2006, but the record reveals that unlike complainant,
the co-worker properly submitted her request on the requisite form.
Complainant did not show that a similarly situated employee outside
his protected class was treated more favorably than he was treated
under similar circumstances. Moreover, the incidents at issue are not
sufficiently severe or pervasive to constitute harassment.
To the extent that complainant maintains that his supervisor's conduct
forced him to retire early, we note that a discriminatory constructive
discharge occurs when the employer, motivated by discriminatory
animus, creates working conditions that are so difficult, unpleasant,
or intolerable that a reasonable person in complainant's position would
feel compelled to resign. Doe v. Social Security Administration, EEOC
Appeal No. 01A114791 (February 21, 2003). In other words, the employee is
essentially forced to resign under circumstances where the resignation is
tantamount to the employer's termination or discharge of the employee.
Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997).
In order to establish a constructive discharge claim complainant must
show that: (1) a reasonable person in her position would have found the
working conditions intolerable; (2) conduct which constituted prohibited
discriminatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. Greer v. United States Postal Service, EEOC Appeal
Nos. 01976756, 01976792 (December 29, 2000) (citing Taylor v. Department
of Defense, EEOC Request No. 05900630 (July 20, 1990)). In this case,
we find that even assuming that complainant's version of events is
accurate, no reasonable fact-finder could conclude that the alleged
actions created intolerable working conditions or constituted unlawful
disability discrimination.
Finally, we note that complainant contends that three witnesses did not
testify on his behalf because they still work for his former supervisor
and have a "conflict of interest." However, we decline to make any
conclusions from this bare assertion.
In summary, there is no genuine issue of material fact in this case
because complainant failed to provide any evidence from which it could
be reasonably concluded that the alleged actions occurred because of
his disability. Accordingly, we find that the AJ properly found no
discrimination or harassment.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that discrimination occurred.
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
__07-07-09________________
Date
1 We note that complainant stated that the agency did not deny him a
reasonable accommodation in this case.
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0120080738
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080738