01A34169
06-14-2004
Philip E. Sharpe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Philip E. Sharpe v. United States Postal Service
01A34169
June 14, 2004
.
Philip E. Sharpe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A34169
Agency No. 1D-271-0046-01
Hearing No. 140-A3-8026X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Distribution Clerk, PS-05, at the
Processing and Distribution Center (P&DC), located in Greensboro, North
Carolina, filed a formal EEO complaint on October 29, 2001, alleging that
the agency had discriminated against him on the bases of race (Caucasian),
sex (male), disability, age (61), and in reprisal for prior EEO activity
(arising under Title VII, Rehabilitation Act and ADEA) when, on August
16, 2001, he was issued a Letter of Warning and charged with �Failure
to Follow Instructions.�
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding
no discrimination. The AJ found that assuming arguendo complainant
established a prima facie case of discrimination on the bases alleged
above, the agency had articulated legitimate, non-discriminatory reasons
for its action. Specifically, the AJ found that complainant was issued
a Letter of Warning charging him with �Failure to Follow Instructions�
for clocking in and out for duty earlier than scheduled. The AJ further
found that complainant has failed to establish, or otherwise demonstrate,
sufficient evidence to support a finding or inference that the agency's
reasons are a mask for unlawful discrimination.
On appeal, complainant contends that other employees outside of his
protected classes, clock in and out earlier than scheduled as he does,
and they were not reprimanded.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting it, under a de
novo standard of review. See 29 C.F.R. � 1614.405(a)(stating that a
�decision on an appeal from an agency's final action shall be based
on a de novo review...�); see also EEOC Management Directive for 29
C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110"), at 9-16 (providing
that an administrative judge's �decision to issue a decision without
a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo�). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis, including on the ultimate issue of whether intentional
discrimination occurred, and on the legal issue of whether any federal
discrimination employment statute was violated. See id. at 9-15.
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
only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. Similarly, an AJ may
not issue a decision without a hearing if he or she actually has to find
facts first to do so.
To prevail in a disparate treatment claim based on race, sex, disability,
age and reprisal, complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case
by demonstrating that he 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); see
also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). The prima facie
inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and non-discriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The Commission concludes that the issuance of a decision without a
hearing was appropriate, as no genuine dispute of material fact exists.
The record reveals that complainant was woefully deviant of his first
line supervisor's (S1) instructions to maintain his regular schedule and
refrain from clocking in and out of duty early, and he boldly indicated
that he would continue to make early clock just as did everyone else.
The record also reveals that all the employees within S1's control,
with the exception of complainant �cooperated and [were] receptive
to the explanation of early clock...� While complainant argued that
other employees clock in and out early like him, the record did not
show that these employees were similarly situated to complainant.
Specifically, the record shows that those employees cited by complainant
were working outside of complainant's tour. The record also reveals that
no other employee displayed the same degree of defiance as complainant.
We find that complainant admitted that he clocks in and out earlier
than scheduled, and he admitted that he failed to follow instructions.
We conclude that a reasonable fact-finder could not have concluded from
the evidence proffered by complainant that unlawful animus motivated the
issuance of the Warning Letter. We conclude that complainant has not �set
forth specific facts showing that there is a genuine issue for trial.�
Fed. R. Civ. P. 56(e). Therefore, for the foregoing reasons, we affirm
the agency's final order adopting the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 14, 2004
__________________
Date