01A04444
03-14-2002
Juan R. Daly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Headquarters), Agency.
Juan R. Daly v. United States Postal Service
01A04444
March 14, 2002
.
Juan R. Daly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 01A04444
Agency No. HO-0166-96 and HO-0224-96
Hearing No. 210-99-6425X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
(FAD), dated April 4, 2000, concerning his two equal employment
opportunity (EEO) complaints of unlawful 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 accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
ISSUES PRESENTED
Whether the Administrative Judge (AJ) erred when she entered Findings
and Conclusions, without a hearing, finding in favor of the agency and
granting summary judgment that complainant failed to prove discrimination
or reprisal as to all allegations.
BACKGROUND
The record reveals that complainant, a Purchasing Specialist, EAS-24, at
the agency's Purchasing/Procurement Department at the Main Post Office,
Chicago, IL facility, filed formal EEO complaint No. HO-0166-96 on May
13, 1996, and filed formal EEO complaint No. HO-0224-96 on August 16,
1996, alleging that the agency had discriminated against him on the
bases of race (Hispanic), national origin (Puerto Rican), sex (male),
age (D.O.B. 12/26/35), and reprisal for prior EEO activity when:
(1) He was issued a Letter of Warning (LOW) dated November 14, 1995;
He was issued a Notice of Suspension dated January 9, 1996;
He was harassed by his supervisor;
He was not allowed to perform a First Article Test on Clothing Locker
on February 19, 1996;
He was not allowed to wear a bolo tie and was sent to the Employees'
Assistance Program (EAP) on February 28, 1996; and
He was issued a Notice of Proposed Removal dated May 13, 1996
At the conclusion of the investigation, complainant received a copy of
the investigative reports and requested a hearing before an EEOC AJ.
The AJ issued a decision without a hearing, finding no discrimination.
Claim 1
Concerning the LOW, dated November 14, 1995, the AJ concluded that
complainant failed to establish a prima facie case of race, national
origin and sex discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees
not in complainant's protected classes were treated differently under
similar circumstances when complainant was issued the LOW for failing
to follow instructions to comply with the dress requirement of wearing
a traditional tie. Complainant failed to submit any evidence in support
of his claim.
Further, the AJ concluded that complainant failed to establish a prima
facie case of age discrimination. Specifically, the AJ found that
complainant failed to present comparative data or other evidence which
would create an inference of age discrimination. Also, the AJ found
that the record did not contain any evidence that would establish a
causal connection between complainant's age and the issuance of the LOW.
Concerning complainant's allegation of retaliation, the AJ found that
the complainant's initial contact with the EEO counselor was January 11,
1996, and the complainant's most recent prior activity was on September
14, 1995. And, although the AJ found that the alleged discriminating
officials were aware of complainant's prior EEO activity, the AJ concluded
complainant offered nothing more than the officials' knowledge of his
prior protected activity to prove his retaliation claim. The AJ found
that complainant failed to establish a prima facie case of retaliation.
Claim 2
Concerning the Notice of Suspension dated January 9, 1996, the AJ
concluded that complainant failed to establish a prima facie case of
race, national origin, age, and sex discrimination and retaliation.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated employees (males) not in complainant's protected
classes were treated differently under similar circumstances when
complainant was issued the suspension for failing to follow instructions
to comply with the dress requirement to wear business attire. Complainant
failed to submit any additional evidence in support of his claim.
Claim 3
Concerning complainant's allegation that he was harassed by his
supervisor, the AJ concluded that complainant failed to establish a
prima facie case of race, national origin, age and sex discrimination
and retaliation. Complainant contended that his team leader (TL)
and the manager (M) of the agency's purchasing and materials service
center harassed him about his dress attire. Complainant believed that
management acted in a discriminatory and retaliatory manner by refusing
to allow him to wear a bolo tie. The AJ found that complainant failed
to submit substantive evidence that other male employees in the division
failed to wear the required professional attire. The AJ found that
although TL and M communicated with complainant on several occasions
regarding the dress code, these attempts to resolve the situation did
not rise to the level of harassment. Furthermore, the AJ found that
management's discussions with or correspondence to complainant, were
not taken because of discriminatory or retaliatory animus.
Claim 4
Concerning complainant's allegation that he was discriminated against
on the bases of race, national origin, age and sex discrimination and
retaliation when he was not allowed to perform a First Article Test on
a Clothing Locker on February 19, 1996, the AJ found that complainant
failed to establish that he suffered a tangible harm.
M explained that a First Article Test is used by the division to determine
if a mass-produced article meets the agency's specification requirements.
The test is initiated at the request of the buyer. The AJ found that
complainant was not at work when the test was scheduled to be performed.
Complainant contended that a co-worker made critical notes of his work
in the course of performing the test. The AJ found that the record
did not contain evidence that the co-worker made notations critical
of complainant's performance. Further, the AJ found that there was no
evidence that such comments, if they did exist, would have negatively
affected complainant's employment. The AJ noted that even complainant
did not allege that the comments were used by management to adversely
affect the terms, conditions, or privileges of his employment. Also,
the AJ found that there is no likelihood that the actions would recur
because complainant retired from the agency effective July 20, 1996.
The AJ concluded that complainant failed to establish that he was harmed
in regard to this matter.
Claim 5
Concerning complainant's allegation that he was not allowed to wear a
bolo tie and was sent to the EAP on February 28, 1996, the AJ concluded
that complainant failed to establish a prima facie case of race, national
origin, age, and sex discrimination and retaliation. The AJ found that
there was no evidence that the requirement that men wear �tie-in-hand
neckties� without holding women to the same standard placed a heavier
burden on the male employees. There was testimony that all employees were
to wear business attire befitting an administrative type office. Further,
the AJ found that the requirement for men to wear a traditional necktie
did not relate to the ability of the male employees to perform their job.
Also, the AJ concluded that different dress requirements for men and
women are not a per se violation of Title VII when the requirements are
equally enforced and equivalent with respect to the burden imposed.
Concerning complainant's allegation that he was sent to the EAP on
February 28, 1996, the AJ found that complainant failed to establish that
he was aggrieved by this recommendation. Although complainant contends he
was ordered to attend, the letter from M stated that he �recommend[s] that
you attend an EAP counseling session.� While complainant was subsequently
admonished concerning the EAP session, it was for not reporting whether
he attended the session, and not for his failure to attend.
Claim 6
Concerning complainant's allegation that he was issued a Notice of
Proposed Removal, dated May 13, 1996, the AJ found that complainant
failed to establish a prima facie case of race, national origin, age and
sex discrimination and retaliation. Complainant had raised allegations
of ongoing harassment and involuntary retirement. The AJ found that
complainant failed to establish that there was ongoing harassment or that
his retirement was involuntary. Further, the AJ found that TL's and M's
actions in counseling, disciplining, or discussing with complainant, on
several occasions, the need for him to comply with dress code requirements
did not rise to the level of harassment.
Concerning being forced to retire, the AJ found that complainant's
retirement did not constitute a constructive discharge. Although
complainant was issued a notice of proposed removal, the notice was held
in abeyance pending the outcome of settlement discussions between the
agency and complainant's attorney. Complainant had the option after
the unsuccessful settlement negotiations to fight his proposed removal.
The AJ found that complainant chose to retire to avoid termination for
legitimate reasons.
The agency's final order implemented the AJ's decision
CONTENTIONS ON APPEAL
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
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. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Concerning complainant's claims of reprisal, the Commission has stated
that adverse actions need not qualify as "ultimate employment actions" or
materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003
(May 20, 1998)). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id.
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
race, national origin, age, and sex. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
CONCLUSION
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we affirm the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 14, 2002
Date