0120130780
05-03-2013
Paul L. Jorgensen, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Paul L. Jorgensen,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120130780
Hearing No. 430-2012-00227X
Agency No. 1K-297-0005-11
DECISION
On December 7, 2012, Complainant filed an appeal from the decision of an EEOC Administrative Judge (AJ) dated September 28, 2012 concerning an equal employment opportunity (EEO) complaint claiming 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 Agency did not issue a final action following the AJ's decision. Therefore, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. � 1614.109(e). The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler at the Agency's Greenville, South Carolina Processing and Distribution Center.
On March 26, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of race (Caucasian), sex (male), and color (white) when:
1. from December 13, 2010 through March 25, 2010, he was moved from his bid assignment;
2. on January 18, 2011, his bid assignment was abolished/reposted, and he became an unassigned regular; and
3. on January 27, 2011, his start time was changed.1
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On August 17, 2012, the AJ issued notice of an intent to issue a decision without a hearing, to which both parties responded. On September 28, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In his decision, the AJ found no discrimination. Specifically, the AJ found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race, sex and color. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
The Plant Manager stated that Complainant was moved from his bid assignment due to operational needs. Specifically, the Plant Manager stated "we had recently moved into this plant and had repositioned most of the jobs. The supervisor requested additional resources for the 010. I don't remember a lot of the details because of the time frame when this happened, but the complainant's job didn't start until about 7:30 PM, he reported to work at 4 PM, the 010 was short mail handlers so, based on the need of the section, he was suggested as resource." The Plan Manager stated that during the relevant time Agency management "moved various employees, not just [Complainant]."
The Plant Manager stated that Agency management moves employees based on the National Agreement for Mail Handlers and "this is done on a daily basis, intermittent and as needed." The Plant Manager stated that Complainant's race, sex and color were not factors in management's decision to move him from his bid assignment. Specifically, the Plant Manager stated that management does not move employees "by race or gender we move based on jobs and the needs of the operation by Juniority and need and where can we move a resource without impacting operations."
Furthermore, the Plant Manager stated that Complainant's start time was changed because "it was agreed upon based on the needs of the service; I believe the Union had to agree to this because of the time change instead of an abolishment and repost." The Plant Manager stated that Complainant "had to accept this offer in order to place him in the job without abolishing the job."
The Manager, In-Plant Support (Manager) stated that that it was a joint decision between him, the Plant Manager, the Acting Senior Manager Distribution Operations to move Complainant from his bid assignment "after consulting with the Union who indicated it was more than a 50% change in jobs which management did not agree with. The Complainant's job was Mail Prep/Strap Out and he was being reassigned to the Platform. The Union's position was that since it was more than a 50% change, we had to repost the bid. The Complainant became an unassigned regular with the same hours and days off for 5 days. On January 27, 2011 he was offered the job with a start time change from 1600 to 1930 with Saturday/Sunday and which, as the incumbent, he accepted the job."
Moreover, the Manager stated that Complainant's start time was changed from 1600 to 1930 "because the window of operations, his hours of work, did not match the job title function."
The Acting Supervisor Distribution Operations (Acting SDO) stated that Agency management made a determination to move Complainant from his bid assignment based on his job description, mail volume, and "also, the start time of outgoing strap out." Specifically, the Acting SDO stated that Complainant was moved "based primarily on job description. Mail prep for flats was not needed due to mail volume decline. Strap out did not begin until late in the evening. He was the only person in that job." The Acting SDO further stated that Complainant's assignment was abolished "based upon an operational decision, business needs."
The Acting Senior Manager Distribution Operations (Acting Senior MDO) stated that during the relevant period, Complainant's start time was 16:00, and that "from 16:00 until approx. 20:00, the complainant does not have any flats to strap out because outgoing operations does not end prior to 21:00. In the meantime, per his bid job, the complainant is asked to perform 'other duties as assigned.' Management did not put anyone else on strap out duties. Prior to the end of processing outgoing flats, the complainant was allowed to set up the strap-out unit and begin strapping out the flats for dispatch."
Complainant, on appeal, argued that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argued that the investigation "conducted was wholly inadequate and one sided. Not one witness for the Complainant or one Union representative was interviewed, and, not one, Union official mentioned (or the Agency mentioned, as contained in the investigative file) in my complaint was interviewed. The investigator also did not require the Agency to produce any documents to support any of their statements or positions."
The instant appeal followed.
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.
Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Agency conducted a thorough investigation. Moreover, the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, sex and color. Although the AJ did not specifically address Complainant's harassment allegation, we find that the incidents of harassment identified by Complainant are not sufficiently pervasive or severe to create a hostile work environment. We discern no basis to disturb the AJ's decision without a hearing, finding no discrimination.
Accordingly, the AJ's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
May 3, 2013
__________________
Date
1 The record reflects that on April 14, 2011, the Agency issued a final decision dismissing the instant formal complaint for failure to state a claim. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Jorgensen v. United States Postal Service, EEOC Appeal No. 0120112920 (October 28, 2011). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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