0120091305
06-11-2010
Ronald L. Doolittle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Ronald L. Doolittle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120091305
Agency No. 1C-441-0048-08
DECISION
On January 14, 2009, complainant filed an appeal from the agency's
December 29, 2008 final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of 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(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUES PRESENTED
The issue presented is whether complainant established that he was
subjected to discrimination on the basis of age.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Tractor Trailer Operator at the agency's Cleveland, Ohio Processing and
Distribution Center. Report of Investigation (ROI), Exh. 1, at 1.
In November 2007, complainant alleged that he asked management to request
donated leave from other employees because of an off-the-job injury.
EEO Counselor's Report, at 3. According to complainant, management failed
to respond to his request for donated leave, posted the request late,
removed the request early, and did not provide forms for employees to
donate leave. Id.
On January 11, 2008, complainant submitted, via his union steward,
a written request for light duty to his second-level Supervisor (S2),
the Manager of Postal Vehicle Service Operations. ROI, Aff. A, at 3;
ROI, Aff. D, at 1. Complainant's request, dated January 10, 2008 and
addressed to the Manager, stated that he was able to drive but could not
lift more than two pounds. ROI, Aff. A, at 7. Complainant attested
that he could drive a tractor trailer for eight hours a day but could
not load or unload the vehicle. Id. at 4. Complainant alleged that
other Tractor Trailer Operators, after being injured, were allowed to
drive while other employees helped them load and unload the vehicles.
EEO Counselor's Report, at 21.
Complainant alleged that, when he did not receive a response from
S2 regarding his request for light duty, he contacted the union and
Grievance No. CL 8-511 was filed on his behalf. ROI, Aff. A, at 3.
On February 28, 2008, complainant's first-level supervisor (S1),
the Supervisor of Transportation, informed the union steward during
a Step 1 meeting that she did not have any knowledge of complainant's
light-duty request. ROI, Aff. A, at 3; ROI, Aff. B, at 2; ROI, Exh. 2,
at 1. S1 denied the Step 1 grievance because she could not award light
duty as a first-level supervisor. ROI, Exh. 2, at 1. Pursuant to a
July 3, 2008 Step 2 settlement agreement, the agency agreed to compensate
complainant for the leave that he was forced to use between Pay Period 2,
Week 1, through Pay Period 4, Week 2. ROI, Exh. 4, at 1.
Complainant alleged that he did not receive a light-duty assignment until
on or around April 21, 2008 and that the Manager of Vehicle Maintenance
(Manager) refused to allow him to work more than four hours a day,
even though additional hours were available because some of the work was
being done by subcontractors. ROI, Aff. A, at 3. Complainant's light
duty assignment primarily consisted of shuttling vehicles back and
forth at the Shaker Vehicle Maintenance Facility. ROI, Aff. A, at 4;
EEO Counselor's Report, at 3.
On July 2, 2008, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of age (50) when:
1. in November 2007, management failed to respond to and post his
request for donated leave; and
2. on or about February 28, 2008, he was made aware that management
refused his request for light duty.
On July 17, 2008, the agency issued a partial dismissal/partial acceptance
of complainant's complaint. The agency accepted claim 2 and dismissed
claim 1 for untimely EEO Counselor contact pursuant to 29 C.F.R. �
1614.107(a)(2). ROI, Issues to be Investigated, at 1, 3.
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). When
complainant did not request a hearing within the time frame provided in
29 C.F.R. � 1614.108(f), the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
Specifically, the agency found that complainant failed to establish
a prima facie case of age discrimination because he did not show that
similarly-situated employees outside of his protected age group received
more favorable treatment. Agency's December 29, 2008 Decision, at 7-8.
Comparator 1 (C1) was the same age as complainant, was a Part-Time
Flexible employee, worked on a different tour than complainant, and had a
different supervisor. Id. at 8. Comparator 2 (C2) was a limited-duty
employee because she had suffered an on-the-job injury. Id. at 9.
The agency then assumed, arguendo, that complainant established a prima
facie case on the basis of age and found that management articulated
legitimate, nondiscriminatory reasons for its actions; namely, when S2
received complainant's request for light duty, she checked with other
supervisors and managers, but no light-duty work was available at that
time and there was no work available in her department. Id. In addition,
S2 attested that during the time when C1 and C2 were injured, there
were other employees who also had medical restrictions that prohibited
them from driving; therefore, those with driving restrictions loaded and
unloaded the vehicles while the employees with lifting restrictions drove
the vehicles. Id. Finally, the agency found that complainant failed
to show that management's explanations for its actions were untrue or
otherwise a pretext for intentional discrimination. Id. at 10.
CONTENTIONS ON APPEAL
EEOC Regulation 29 C.F.R. � 1614.403(d) provides that any statement
or brief on behalf of a complainant in support of the appeal must be
submitted to the Office of Federal Operations and to the agency within
30 days of filing the appeal. In this case, the record reflects that
complainant filed his appeal on January 14, 2009. Any statement or
brief in support of his appeal was due no later than February 13, 2009.
Complainant's brief in support of his appeal, filed on February 18,
2009, is untimely and will not be considered in the instant decision.
The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Claim 1 - Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint
that fails to comply with the applicable time limits contained in �
1614.105, unless the agency extends the time limits in accordance with
� 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides,
in pertinent part, that an aggrieved person must initiate contact with
an EEO Counselor within 45 days of the date of the matter alleged to
be discriminatory.
In the instant case, we find that the agency properly dismissed claim
1 for untimely EEO Counselor contact. The record discloses that the
alleged discriminatory event occurred in November 2007. EEO Counselor's
Report, at 3. Assuming that the alleged discriminatory event occurred,
at the latest, on November 30, 2007, complainant therefore was required
to initiate contact with an EEO Counselor by January 14, 2008 to fall
within the 45-day limitation period, but complainant did not initiate
contact until April 4, 2008. EEO Counselor's Report, at 1. The record
reflects no basis for extension of the 45-day limitation period.
Claim 2 - Disparate Treatment
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).
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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory 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, 143; 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).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
Assuming, arguendo, that complainant established a prima facie case of
age discrimination, the Commission finds that the agency articulated
legitimate, nondiscriminatory reasons for refusing his request for
light duty. Specifically, S2 attested that in response to complainant's
January 10, 2008 request, she checked with the supervisors in her
department to see if work was available for complainant. ROI, Aff. D,
at 1. In addition, S2 attested that she sent an email to the Manager
of Vehicle Maintenance and the Manager of Plant Support asking for
available work. Id. Further, S2 attested that complainant had to be
trained when available work was found and that the instructor was not
immediately available to provide training for complainant.
Because the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to complainant to demonstrate by the
preponderance of the evidence that the agency's reasons are a pretext
for discrimination. In an attempt to show pretext, complainant asserts
that management made accommodations for younger drivers during the time
he was denied light duty by allowing them to drive while other employees
loaded and unloaded the vehicles. ROI, Aff. A, at 4. In addition,
complainant argues that management falsely claimed that there was no
work available for him, because the union had copies of invoices from
vehicles shuttled back and forth by subcontractors. Id.
In this case, we find that complainant failed to provide evidence that
management's actions were based on discriminatory intent. Although
complainant identified C1 and C2 as comparators who received more
favorable treatment, we find that C1 and C2 were not similarly situated
because C1 was the same age as complainant and C2 was on limited-duty as
the result on an on-the-job injury. ROI, Exh. 8, at 1-2; ROI, Exh. 9, at
1, 3. Even assuming that C1 and C2 were similarly situated, S2 attested
that employees who were restricted from driving helped C1 and C2 load
and unload the vehicles, but that no such employees were available to
assist complainant during the relevant time period. ROI, Aff. D, at 2.
In addition, while complainant asserts that management did not assign
him to light duty work that was available, complainant has failed to
provide any evidence to support his bare assertions. Accordingly, we
find that the agency's finding of no discrimination is supported by the
preponderant evidence of record.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the agency's final
decision.
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
June 11, 2010
Date
2
0120091305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013