Robert K. DesVergnes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01a00806 (E.E.O.C. Aug. 2, 2000)

01a00806

08-02-2000

Robert K. DesVergnes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Robert K. DesVergnes v. United States Postal Service

01A00806

August 2, 2000

.

Robert K. DesVergnes,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No.01A00806

Agency No.4B-028-0060-99

Hearing No.160-99-8783X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of sex (Male) and physical

disability (Varicose Veins and Bursitis in his right shoulder),<1> in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq.; and the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791, et seq.<2> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented is whether complainant has shown by preponderant

evidence that the alleged incidents constituted discrimination or

harassment against him on the bases of his sex and physical disability.

BACKGROUND

The record reveals that complainant, a full-time custodian at the agency's

North Attleboro Post Office, Attleboro, Massachusetts, filed a formal

EEO complaint with the agency on April 9, 1999. Complainant alleged

that the agency had discriminated against him on the bases of sex and

physical disability when his schedule was changed effective February 20,

1999, and when he was subjected to harassment when a Co-worker allegedly

made false accusations against complainant on February 13, 1999, and

was not disciplined for it.<3> The agency accepted his complaint for

investigation.

At the conclusion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). The agency motioned for

Findings and Conclusions without a hearing. The AJ reviewed the motion

and on September 15, 1999, the AJ issued his Findings and Conclusions,

finding that there are no genuine material disputes of fact or questions

of credibility to be determined at a hearing. The AJ also concluded

that the agency did not discriminate against complainant and adopted by

reference the agency's statement of facts and law submitted in its Motion

in Support of Fact and Conclusions of Law Without a Hearing (Motion).

The AJ adopted the agency's determination that complainant failed

to establish by a preponderance of the evidence that the agency's

actions were discriminatory. Initially, the AJ stated the allocation of

burdens and three-step order of presentation of proof in Title VII and

Rehabilitation Act cases. Further, the AJ incorporated the agency's

determination that complainant failed to establish a prima facie case

of sex and disability discrimination. The agency also noted that even

had complainant established his prima facie case of discrimination, the

agency articulated a legitimate, nondiscriminatory reason for its action.

In particular, the agency argued that it had the right to change the

schedule as needed. Further, the AJ accepted the agency's reason for its

action and its argument that complainant failed to show by preponderant

evidence that the agency's action was motivated by discrimination.

Accordingly, the AJ concluded that complainant failed to prove by a

preponderance of the evidence that the agency discriminated against him.

The agency's final decision implemented the AJ's Findings and

Conclusions.

On appeal, complainant contends that on appeal, he would have provided

evidence of his impairment. The agency requests that we affirm its

final decision.

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. This regulation is patterned after the summary judgment procedure

set forth in Rule 56 of the Federal Rules of Civil Procedure. The United

States Supreme Court has stated that summary judgment is appropriate

where the trier of fact determines that, given applicable substantive

law, no genuine issue of material fact exists. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the

evidence is such that a reasonable fact-finder could find in favor of the

non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st

Cir. 1988). In the context of an administrative proceeding under Title

VII, summary judgment is appropriate if, after adequate investigation,

complainant has failed to establish the essential elements of his or

her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173

(3d Cir. 1988). In determining whether to grant summary judgment,

the trier of fact's function is not to weigh the evidence and render a

determination as to the truth of the matter, but only to determine whether

there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.

After a careful review of the record, we find the AJ properly determined

that there was no genuine issue of material fact in this case.

Specifically, we find that complainant failed to set forth sufficient

facts showing that there was a genuine issue still in dispute. Moreover,

complainant failed to respond to the agency's Motion and failed to

provide in this appeal any evidence or argument that material issues

are in dispute. Therefore, we concur in the AJ's determination and find

that summary judgment was appropriate in this case.

Based on our careful de novo review of the entire record before us,

the Commission finds that the AJ's recommended findings and conclusions

correctly found that complainant failed to establish his claim of

discrimination on the bases of sex (male) and physical disability

(Varicose veins and Bursitis in his right shoulder) when his schedule

was changed. A claim of disparate treatment is examined under the

three-part analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must

first establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination, i.e., that a prohibited consideration was a factor in the

adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco

Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the agency has met its burden, the complainant bears the

ultimate responsibility to persuade the fact finder by a preponderance of

the evidence that the agency acted on the basis of a prohibited reason.

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. United States

Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, in response to complainant's claims of discrimination, the agency

presented evidence that it changed complainant's work schedule because the

agency found that certain custodial work duties were not accomplished well

by an employee with a 6:00 PM ending time.<4> We find that the agency

has articulated a legitimate, nondiscriminatory reason for its action.

Since the agency articulated a legitimate, nondiscriminatory reason for

its action, the burden returns to the complainant to demonstrate that the

agency's articulated reason was a pretext for discrimination. Upon de

novo review, we find that complainant has failed to do so. Therefore,

the agency's determination that complainant failed to establish that he

was discriminated against was correct.<5>

As to complainant's claim of harassment which allegedly occurred

on February 13, 1999, we find that the AJ failed to make any

determination regarding this claim. The Commission has found that

there is no genuine issue of material fact as to complainant's claim

of harassment. Therefore, we find it appropriate to determine whether

complainant established that the agency's action was harassment. It is

well-settled that harassment based on an individual's sex and disability

is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986),

see also Olson v. Housing and Urban Development, EEOC Request No. 05930413

(June 16, 1994) (finding that acts of harassment directed at an employee

because of a physical or mental disability, if sufficiently severe or

pervasive, violate the Rehabilitation Act). In order to establish a

claim of harassment under those bases, the complainant must show that:

(1) he belongs to the statutorily protected classes and engaged in

prior EEO activity; (2) he was subjected to unwelcome conduct related

to his membership in those classes and his prior EEO activity; (3) the

harassment complained of was based on sex and/or disability; (4) the

harassment had the purpose or effect of unreasonably interfering with his

work performance and/or creating an intimidating, hostile, or offensive

work environment; and (5) there is a basis for imputing liability to the

employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

The harasser's conduct should be evaluated from the objective viewpoint of

a reasonable person in the victim's circumstances. Enforcement Guidance on

Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

Based upon de novo review of the record, the Commission finds that

complainant failed to establish that the agency's action in a single

incident rose to the level of interfering with his work performance

and/or creating an intimidating, hostile, or offensive work environment.

Accordingly, the Commission finds that complainant failed to establish

by preponderant evidence that the agency's action constituted harassment.

CONCLUSION

Therefore, after a careful review of the record, we affirm the agency's

final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

August 2, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

3The record reveals that the Co-worker reported to the Postmaster that

complainant had smirked at him and tried to block his passage while

complainant was posted at the Supervisor's desk. Complainant further

notes that when he was accused of making false claims by the Co-worker,

complainant was disciplined by the Postmaster.

4The agency argued that moving the ending time for a custodian to 6:30

PM would allow him or her to sweep, vacuum, wash, and empty trash in the

customer lobby area after the area closed at 5:30 PM and to organize and

clean the loading dock area after the last truck was dispatched after

5:40 PM.

5 We find that the agency erred in its Motion to the extent that it

found that complainant had not established a prima facie case of race

discrimination because he was unable to demonstrate that he was treated

less favorably than any similarly situated employee. We note that to

establish a prima facie case, complainant must only present evidence

which, if unrebutted, would support an inference that the agency's

actions resulted from discrimination. Furnco, 438 U.S. at 576. It is not

necessary for the complainant to rely strictly on comparative evidence in

order to establish an inference of discriminatory motivation necessary to

support a prima facie case. O'Connor v. Consolidated Coin Caterers Corp.,

116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated

Coin Caterers Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);

Carson v. Bethlehem Steel Corp., 82 F.3d 157 (7th Cir. 1996).