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