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).