John P. Batiste, Jr, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 31, 2009
0120082673 (E.E.O.C. Aug. 31, 2009)

0120082673

08-31-2009

John P. Batiste, Jr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John P. Batiste, Jr,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120082673

Hearing No. 461-2006-00080X

Agency No. 1G-701-0002-06

DECISION

On May 21, 2008, complainant filed a timely appeal from the agency's final

order, dated May 2, 2008, concerning his equal employment opportunity

(EEO) complaint claiming 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 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

During the period at issue, complainant worked as a mail processing

clerk, on a modified assignment, at the New Orleans Processing and

Distribution Center. Believing that he was subjected to discrimination

complainant contacted an EEO Counselor. Informal efforts to resolve

complainant's concerns were unsuccessful. On June 8, 2006, complainant

filed a formal complaint claiming that he was the victim of unlawful

employment discrimination on the basis of age (56) , disability (stress;

knees/back/shoulder) and race (black).1

The agency framed the claims as follows:

(1) On March 12, 2006, complainant discovered that his customized lumbar

support workmen's compensation orthopedic chair was missing and he was

not compensated for it;

(2) Complainant elected to take the Voluntary Early Retirement (VER),

on January 17, 2006, and as of today, complainant has not received an

answer from the agency; and,

(3) On an unspecified date, complainant was not assigned a Rehab

position.2

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. Over complainant's objections, the AJ granted

the agency's February 21, 2007 motion for a decision without a hearing.

On April 21, 2008, the AJ issued a decision finding no discrimination.

The AJ found that complainant did not establish a prima facie case

for any of his claims. Specifically, regarding the basis of age,

the AJ noted that the agency officials deny knowing complainant's age.

Additionally, of all the responsible officials named by complainant,

most were no more than six years younger, not "significantly younger."

The AJ found no evidence that a similarly situated younger individual

was treated more favorably.

Regarding the basis of race, the AJ again determined that complainant

failed to identify a similarly situated individual outside his protected

class that was treated more favorably. According to the AJ, complainant

acknowledged that he did not request a Rehab position.

Regarding the basis of disability, the AJ found that even assuming

that complainant was a "qualified individual with a disability", there

was no evidence of "discriminatory animus behind the fate of the chair

(claim (1)). . . ." Additionally, the record indicated that the chair

was purchased by OWCP and therefore complainant was not entitled to

any compensation for it. With respect to the early retirement (claim

(2)), the AJ found that complainant was not qualified. Additionally,

the record showed that when complainant was re-directed to the proper

point of contact, he never contacted the individual to whom he had

been directed.

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

On appeal, complainant argues that claim (1) states a claim because the

agency "took adverse action by not continuing to provide an ergonomic

chair and not following the orders [issued in a prior appeal]." Also,

complainant contends that he now knows the party who damaged his chair:

the Parts Clerk for the Maintenance Department.

Complainant disputes the agency's contention that he was not qualified

for early retirement, but arguing that post-Katrina downsizing resulted

in an "Employee Notification - Involuntary Reassignment." The notice

offered complainant the choice between relocating to Port Allen or VER.

Complainant states he notified the agency of his election , VER, to no

response.

Regarding claim (3), complainant argues that he did not "request" a Rehab

position because as an on-the-job injured employee he was not required

to do so.

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.

We find that the AJ properly granted the agency's motion for a decision

without a hearing. The record does not indicate that any genuine issues

of material fact exist.

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, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

Here, complainant contends that he suffered discrimination when his

ergonomic chair was missing. The Commission finds that his claim is not

supported by the record. Complainant has not established any connection

between the loss of his chair and his age or disability. The record

indicates that when the chair went missing, complainant contacted

the Postal Police rather than his supervisor. Further, complainant's

supervisor attested that complainant had no knowledge of the special

chair and that complainant did not request a replacement from him.

In claim (2), complainant alleges he was discriminated against when

the agency failed to response to his attempts to take early retirement.

Once again, the record contains no nexus between complainant's race, age,

or disabilities and the VER. Even assuming that complainant received

the notification offering a choice of reassignment or retirement and

selected the latter, there is no evidence that the agency's inaction

was related to complainant's protected classes. Rather, it appears

that complainant contacted one agency official regarding VER, who then

re-directed complainant to a personnel official. The agency contends

that complainant never contacted that individual.

As noted above, with respect to the Rehab position, the agency states

complainant was not assigned a Rehab position because he did not request

one. Complainant counters by arguing that he was not required to make

such a request. He has not established, however, any nexus between the

agency's inaction and his race or age.

Finally, we note that complainant has not presented similarly situated

individuals, outside of his protected classes, that were treated more

favorably. For example, an agency official attested that there were

other on-the job injured employees that also were not assigned Rehab

positions.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

the agency's decision is hereby 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

August 31, 2009

__________________

Date

1 Complainant claimed discrimination based on age and disability with

respect to claim (1). Complainant claimed discrimination on the basis

of race and age regarding claim (3).

2 The formal complaint also included a fourth claim: on February 22,

2006 and March 9, 2006, complainant received a notice from the Injury

Compensation Office requesting that he take a new physical. In June

2006, the agency dismissed the matter for failure to state a claim.

Complainant does not challenge the dismissal on appeal. Consequently,

the Commission shall not consider the matter in the instant decision.

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0120082673

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120082673