LaDaryl Roland, Sr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 15, 2009
0120071065 (E.E.O.C. Oct. 15, 2009)

0120071065

10-15-2009

LaDaryl Roland, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


LaDaryl Roland, Sr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071065

Hearing No. 440-2006-00079X

Agency No. 4J-604-0013-06

DECISION

Complainant filed an appeal with this Commission concerning his complaint

of unlawful employment discrimination. The agency defined complainant's

complaint as alleging that he was subjected to discrimination on the bases

of race (African-American), sex (male), disability (stress/disability

upon association), and in reprisal for prior protected EEO activity when:

1. On October 18, 2005, complainant was issued a seven day suspension

for failure to report as scheduled.

2. On November 17, 2005, complainant was issued a fourteen day suspension

for failure to follow a direct order.

3. On January 13, 2006, complainant was not paid 32 hours of sick

leave.1

On October 26, 2006, an EEOC Administrative Judge (AJ) issued a decision

without a hearing finding that there was no genuine issue of material fact

in dispute, and concluded that complainant had not been discriminated

against as alleged. In her decision, the AJ noted that complainant

claimed he was discriminated against based on his disability and also

based on association and the AJ addressed both bases in her decision.

Moreover, the AJ noted that complainant also claimed he was subject to

"intersectional discrimination," which he defined as discrimination

based on color, race and sex. The AJ found that although intersectional

discrimination is not a covered basis, the individual bases of color,

race, and sex are considered protected categories and thus, were addressed

by the AJ in the decision. In her decision, the AJ found the agency

presented legitimate, nondiscriminatory reasons for its actions, which

complainant failed to rebut were a pretext for discrimination.

On November 10, 2006, the agency issued a notice of final action finding

no discrimination. The agency fully implemented the AJ's decision.

Complainant now appeals from that decision.

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.

Upon review, we find the issuance of summary judgment was appropriate.

Regarding complainant's claim that he was issued a seven day suspension

for failure to report as scheduled, the Supervisor of Customer Service

(SCS) stated that she issued complainant the suspension when complainant

failed to submit the necessary documentation to substantiate his

absence.2 The SCS noted that complainant failed to follow the proper

call-in procedures when he did not call the attendance line on September

9, 2005, to report his absence. The SCS stated that instead complainant

called a clerk and informed the clerk that he would not be in to work

that day. The Postmaster concurred with the issuance of the seven day

suspension and noted that in addition to failing to follow the proper

procedures for reporting his absence on September 9, 2005, complainant

failed to call in or report to work as scheduled on September 10, 2005.

Complainant states that the attendance line was not equipped to handle the

type of absence he was calling in on September 9, 2005. Complainant does

not dispute that he left a message with a clerk on September 9, 2005,

reporting he would be absent that day, rather than with the attendance

line or a supervisor. Complainant claims that he was not scheduled to

work on September 10, 2005. We find the agency articulated legitimate

non-discriminatory reasons for issuing the seven day suspension, its

good faith belief that complainant failed to follow proper attendance

procedures on September 9-10, 2005. Upon review of the record, we find

complainant failed to show that the agency's actions were a pretext

for discrimination.

As to complainant's claim that he was issued a fourteen day suspension

for failure to follow a direct order, the SCS stated that the suspension

was based on complainant's failure to complete his assignment on October

15, 2005, as directed by her. The SCS said, after reporting to work on

October 15, 2005, complainant, who was a volunteer on the overtime list,

informed her that he had an appointment and could not work overtime.

The SCS reported that complainant stated that the appointment was personal

and would not explain the nature of the appointment. The SCS asserted

that she told complainant that he was on the overtime list and that he

was needed to work overtime. The SCS claimed that she gave complainant a

direct order that he needed to case all mail, to carry his entire route,

and to work one hour of overtime. The SCS claimed that complainant

brought back one hour of undelivered mail and failed to obey her

instructions. Complainant asserts that he informed the SCS that morning

that his scheduled appointment was a medical visit and he states that he

later offered to provide documentation to show that he had a doctor's

appointment scheduled. Complainant does not dispute the fact that he

failed to provide documentation on October 15, 2005, indicating that

he had a doctor's appointment scheduled that afternoon. Even assuming,

for the purposes of summary judgment, that complainant had informed the

SCS that the scheduled appointment on the afternoon of October 15, 2005,

was a doctor's appointment, we find complainant failed to show that the

agency's articulated reason for issuing the fourteen day suspension,

failure to follow a direct order, was a pretext for discrimination.

With respect to complainant's claim that he was not paid sick leave

for the time frame of January 3, 2006, to January 25, 2006, the record

reveals that the Family Medical Leave Act (FMLA) Coordinator denied the

request based on complainant's failure to provide medical documentation

showing that complainant needed to take off work intermittently or

to work a less than full schedule during this time frame. The record

reveals that on February 22, 2006, complainant's doctor acknowledged

that the forms she previously submitted were not filled out correctly.

On February 22, 2006, complainant's doctor changed her response to

indicate that complainant would need time off work intermittently or

to work less than a full schedule. The FMLA Coordinator asserted

that once complainant's doctor provided the corrected information the

agency approved complainant's FMLA leave for the period in question.

Complainant acknowledged in his statement of facts that this was true.

According to Complainant's Pre-Hearing Submission dated July 31,

2006, complainant said that his medical provider misunderstood the

questions asked on his FMLA form, which was rectified in February 2006.

Complainant also acknowledged that, following his doctor's corrections

to the FMLA forms, his FMLA request was not only approved, but he admits

that he was also paid for the leave requested. Complainant has failed

to show that the agency's actions in initially denying his sick leave

were motivated by discriminatory animus.

Next, we address complainant's contention that the agency failed

to address his claim that he was subjected to "intersectional

discrimination." "Title VII prohibits discrimination not just because of

one protected trait (e.g., race), but also because of the intersection

of two or more protected bases (e.g., race and sex)." EEOC Compliance

Manual, Section 15, "Race and Color Discrimination," No. 915.003, at

15-4 (April 19, 2006). Thus, we find complainant's claim that he was

subjected to discrimination because of the intersection of his race,

color and age is covered under Title VII. Based on a review of the record

and the arguments submitted on appeal, we note complainant is claiming

that he was subjected to discrimination based on his status as a black,

African-American male when:

(A) A co-worker told him that in 2003 the Postmaster made a comment

about complainant "messing with those white women."

(B) In 2003, the Postmaster "tried to get a coworker of complainant's

to write a false statement about him in connection with an incident that

occurred the day before the Postmaster started working at the Riverside

Post Office.

(C) On three occasions in connection with his claim for 120 hours of

FMLA, the Postmaster told union officials that she is not going to pay

complainant.

(D) In her EEO Affidavit, in response to being asked, "What sex did you

believe the Complainant to be," the Postmaster responded, "I believe

[complainant] is a male."

(E) In her EEO Affidavit, in response to being asked, "What race did

you believe the Complainant to be," the Postmaster responded, "I believe

[complainant] to be African American."

Although the AJ did not specifically address the claim of intersectional

discrimination, we find the issue appropriate for summary judgment.

We note that the incidents identified in (A) and (B) above occurred

in 2003, two years prior to the incidents at issue in the present case.

Comment C does not make any reference to complainant's race, color or sex.

The comments identified in (D) and (E) above were statement made during

the investigation of the subject EEO complaint and complainant failed

to show that the comments were discriminatorily motivated. Moreover,

we find complainant has failed to establish a nexus between any of the

comments cited and the remaining claims raised in the present case.

Furthermore, complainant stated he is not aware of any comments made

by the Supervisor of Customer Service (SCS) that would indicate that

she views black, African-American males unfavorably. Thus, we find

complainant has failed to show that he was subjected to discrimination

based on his status as a black, African-American male. Furthermore,

we find that complainant failed to show that he was subjected to

"intersectional discrimination" regarding any claim in the complaint.

With regard to complainant's claim that he was denied a reasonable

accommodation, complainant identified his impairment as stress.

Complainant stated that his stress saps his energy level and that he must

force himself to concentrate. Complainant testified that he was able

to perform the essential functions of his position with the exception

that he required flexibility to attend medical appointments, or to stop

for a few minutes rest. Complainant states that he requested two forms

of accommodation: that he be allowed to attend a doctor's appointment

on October 15, 2005; and that he be given "time to recuperate" in

January 2006. Upon review, we find complainant did not provide any

medical documentation that he needed an accommodation in order to

perform the essential functions of his position as a letter carrier.

Moreover, complainant does not allege that he was forced to work beyond

his medical restrictions. Thus, we find complainant did not establish

that the agency denied him a reasonable accommodation.

Finally, we note that complainant also appears to be claiming disability

based discrimination based on his association with his mother when he was

denied reasonable accommodation to care for his mother. The standards

used to determine whether the Rehabilitation Act has been violated

are the same standards as the Americans with Disabilities Act. 29

C.F.R. � 1614.203(b). The association provision of the ADA prohibits

employment discrimination against a person, whether or not he or she has

a disability, because of his or her known relationship or association

with a person with a known disability. The Commission notes, however,

that the ADA does not require an employer to provide a reasonable

accommodation to a person without a disability due to that person's

association with someone with a disability. Thus, complainant was not

entitled to a reasonable accommodation to care for his mother under

the Rehabilitation Act. See Question 4, EEOC's Questions and Answers

About the Association Provision of the Americans with Disabilities Act,

available at www.eeoc.gov/facts/association_ada.html.

Accordingly, the agency's decision finding no discrimination is 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

October 15, 2009

__________________

Date

1 The agency noted that complainant initially alleged a failure to be

paid for 32 hours, but he later increased the amount to 120 hours.

2 In its motion for summary judgment, the agency states that although the

seven day suspension provides information concerning complainant's absence

from August 25, 2005, to September 6, 2005, this was not a reason for

issuance of the suspension. Rather, the agency claims this information

was provided as background information in the letter of suspension.

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0120071065

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013