0120080666
09-11-2009
Ricky Wingle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Ricky Wingle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120080666
Hearing No. 471-2007-00073X
Agency No. 1J-483-0069-06
DECISION
On November 20, 2007, complainant filed an appeal from the agency's
October 18, 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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely
and is accepted for de novo review pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
ISSUE PRESENTED
Whether the Administrative Judge properly issued a decision without a
hearing in favor of the agency.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Tractor Trailer Operator-Level PS-7 (TTO) in the Vehicle Maintenance
Facility (VMF) at the agency's Detroit Processing and Distribution Center.
On December 21, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (White), sex (male), and
age (49) when, on September 20, 2006, he was issued a Letter of Warning
(LOW) charging him with "Failure to Adhere to Attendance Regulations."
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. Over complainant's objections, the AJ assigned to
the case granted the agency's July 23, 2007 motion for a decision without
a hearing and issued a decision without a hearing on October 11, 2007.
AJ Decision
The AJ found as follows: complainant could not establish a prima facie
case of discrimination on the alleged bases, noting that complainant
failed to identify any employee, supervised by the same supervisor,
who was similarly repeatedly tardy but was not disciplined with a LOW.
In fact, the record shows that African-American male and female
employees who were repeatedly tardy and absent were issued LOWs by
the same supervisor. Additionally, complainant did not show that his
supervisor's reason for issuing the LOW was not true but a pretext
for race, sex or age discrimination. The supervisor issued the LOW
because of complainant's repeated tardiness, which were not covered
by FMLA. Although the agency acknowledged that complainant had a FMLA
condition, the supervisor did not believe this relieved complainant from
following call in procedures if he was late due to his medical condition.
Complainant failed to address the agency's contention that he failed to
follow the procedures for calling in late. Thus, complainant did not rebut
the supervisor's reasons for the LOW. The AJ found no discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
Complainant makes no new arguments on appeal. The agency asks the
Commission to affirm the final order.
ANALYSIS AND FINDINGS
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).
Here, assuming complainant could establish a prima facie case of
discrimination on the alleged bases, the agency has articulated
legitimate, nondiscriminatory reasons for its actions (tardiness and
failure to follow call-in procedures). Although complainant contends
that others outside of his protected groups were treated more favorably,
the record did not support his assertion. As noted above, the record
shows that African-American male and female employees who were repeatedly
tardy and absent were issued LOWs by the same supervisor. Complainant has
not offered any persuasive evidence that management's reasons were most
likely pretexts for discriminatory animus.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.1 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
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
____9/11/09______________
Date
1 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120080666
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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