0120080714
07-07-2009
Marvin Woodson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Marvin Woodson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120080714
Hearing No. 532-2006-00105X
Agency No. 1C-41-0034-06
DECISION
On November 16, 2007, complainant filed an appeal from the agency's
October 10, 2007 final order concerning his equal employment opportunity
(EEO) complaint alleging 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 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 sign painter-illustrator, PS-06, at the agency's Post Office facility
in Cleveland, Ohio.
On April 1, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American),
sex (male), color (dark skin), and disability when since January 2006,
the agency denied him higher level 7 pay as an illustrator.
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, and the AJ held a hearing on July 11, 2006 and
issued a decision on September 20, 2007. In the decision, the AJ found
that complainant failed to establish a prima facie case of race, color
and sex discrimination. The AJ further found that complainant failed to
show that he was denied a higher level of pay because of his disability.
The agency subsequently issued a final order adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in finding no
discrimination. Complainant maintains that as the sole employee in the
Graphic Design Department, he performs all the duties of the illustrator
position for the facility. Complainant maintains that his supervisor
suggested that he could only pay complainant at the 7 level if he worked
on the vertical lift. Complainant notes that the supervisor testified
that complainant has done higher-level assignments, and the supervisor
has requested that complainant receive level 7 pay. The agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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).
In this case, complainant failed to prove that a similarly situated
employee outside of his race, color, and sex classifications was treated
more favorably than he was under similar circumstances. In so finding, we
note that complainant contended that three coworkers received higher pay
than he received, but these employees were the same race, color, and sex
as complainant. Moreover, complainant failed to establish the coworkers'
disability status.1 We determine that complainant failed to provide any
evidence that would establish an inference of race, color, disability,
or sex discrimination. Thus, we find that complainant failed to establish
a prima facie case of race, sex, disability, or color discrimination.
Further, we find that the agency provided legitimate, non-discriminatory
reasons for its actions. Specifically, the supervisor testified that
complainant was not raised to level 7 because he mainly makes signs,
which is level 6 work that is within his level 6 job description.
The supervisor stated that he previously asked the agency to raise
complainant's pay because complainant "constantly complained," which
created a "dark cloud" over the unit, but he did not believe that
complainant performed level 7 work. The supervisor stated that he tried
to get complainant a level 7 classification by getting him a license to
operate a Vertilift, but he later learned that level 4 employees could
operate Vertilifts. The supervisor stated that anything complainant
has done at work has been within the duties of his level 6 position.
We conclude that complainant failed to prove that the agency's articulated
reasons were pretext for unlawful discrimination. Thus, we find that
substantial evidence supports the AJ's finding of no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final order for the reasons set forth in this decision.
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 For purposes of analysis, we assume arguendo that complainant is a
qualified individual with a disability.
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0120080714
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080714