Maximo C., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionFeb 25, 20160120143137 (E.E.O.C. Feb. 25, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo C., Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120143137 Hearing No. 551-2013-00129X Agency No. 1E-837-0006-12 DECISION Complainant filed an appeal from the Agency’s August 13, 2014 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended 29 U.S.C. § 621 et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and Title II of the Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a Laborer/Custodian at the Processing and Distribution Center in Boise, Idaho. On November 11, 2012, he filed an EEO complaint in which he alleged that the Maintenance Operations Supervisor, his first-line supervisor (S1) discriminated against him on the bases of race (Asian), color (yellow), sex (male), religion (Catholic), national origin (Chinese), age (60), disability (residual effects of foot and ankle surgery), and genetic information (information pertaining to anxiety disorder) by refusing to allow him to work more 1This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 012014314837 2 than eight hours per day between August 22, 2012, and October 31, 2012, the date of his retirement. Complainant underwent surgery and thereafter presented a light duty request. The medical documentation that Complainant submitted in support of his request indicated that although he could work up to 10 hours per day, he could only do simple grasping and fine manipulation for no more than eight hours per day. According to S1, another supervisor who worked with Complainant during his last few weeks on the job, and the Maintenance Manager, the essential functions of Complainant’s light duty detail assignment consisted almost entirely of fine manipulation and grasping. They averred that they were following Complainant’s medical restrictions as they understood them, and that they had allowed Complainant to work a sixth day when such overtime was available, although not for more than eight hours per day. Investigative Report (IR) 173-82, 205, 234, 257-61. Complainant himself acknowledged that he was allowed to work a sixth day while he was on the overtime desired list. IR 90. At the conclusion of the investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Although Complainant timely requested a hearing, the AJ assigned to the case granted the Agency’s August 14, 2013 motion for summary judgment and issued a decision on July 31, 2014, without holding a hearing. The Agency subsequently issued its final order in which it implemented the AJ’s decision finding that no genuine issue of material fact existed with respect to Complainant’s claim and ultimately that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving assignment of overtime unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his disparate treatment claim, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether S1 was motivated by unlawful considerations of the various bases listed above in connection with his decision not to allow him to work more than eight hours per day after August 22, 2012. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Complainant can do so in circumstantial evidence cases such as this by presenting documents or sworn testimony showing that the reason articulated by S1 for not allowing him to work in excess of eight hours per day is pretextual, i.e., not the real reason but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext may include discriminatory statements or past personal treatment attributable to S1, comparative or statistical data revealing differences in treatment across lines related to one or more of the above-referenced bases, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately 012014314837 3 explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). When asked by the investigator why he believed that S1 had discriminated against him in not allowing him to work in excess of eight hours per day after August 22, 2012, Complainant responded that Caucasian employees were allowed to work more than eight hours of overtime, that he was the only Chinese-born custodian, and that “the way management treated [him], anything was possible.” IR 82-87. He was also unable to identify what genetic information had been obtained from him or who had obtained it. IR 87-89. The laws the Commission enforces cannot prevent an employer from making decisions with which its employees disagree unless those decisions are rooted in a statutorily proscribed motivation. And on this crucial issue, Complainant did not provide evidence of any of the indicators of pretext described above. He has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by S1 or any of the other officials involved in the decision not to let him exceed eight hours of work per day, or which call their veracity into question. We therefore find, as did the AJ, that no genuine issue of material fact exists with respect to S1’s motivation in not allowing him to work more than eight hours per day after August 22, 2012. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). 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 012014314837 4 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 25, 2016 Date Copy with citationCopy as parenthetical citation