0120080139
09-25-2009
Ronald L. Livingston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald L. Livingston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080139
Agency No. 1F-901-0127-06
Hearing No. 480-2007-00088X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 13, 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. Complainant alleged
that the agency discriminated against him on the bases of race (Black)
and reprisal for prior protected EEO activity when, during the period
March 16, 2006, to April 28, 2006, he was denied overtime.
Complainant, a Full Time Mail Processing Clerk, PS-05, at the agency's
Los Angeles, California Processing and Distribution Center, alleged
that although he was on the overtime-desired list he was not approved
overtime as often as an employee not of his protected groups.
Following an investigation by the agency, the complainant requested a
hearing before an EEOC Administrative Judge (AJ). Over complainant's
objection, the AJ granted the agency's motion for a decision without
a hearing, and issued a decision finding that complainant did
not establish that he had been subjected to discrimination. The AJ
found that complainant failed to establish a prima facie case of race
discrimination because he failed to show that other employees not of
his protected groups were treated more favorably. The AJ noted that
the comparators offered by complainant were not similarly situated
to him as they did not have the same supervisor and did not work the
same tour. The AJ found however, that complainant established a prima
facie case of reprisal for prior protected activity, but that the agency
had articulated a legitimate nondiscriminatory reason for its actions;
namely, that complainant was approved over 40 hours of overtime during the
time in question and approval of overtime was at the discretion of his
supervisor (the supervisor of tour 1) and not the supervisor of tour 2.
The AJ found that complainant failed to show that the agency's reasons
were pretext for discrimination.
On appeal, complainant contends that the agency initially used the
wrong dates for the investigation.1 Complainant explains that he filed
two Default Motions because the agency refused to correct the dates
in question. He also maintains that the agency delayed completing
discovery for an unreasonable amount of time. Complainant contends that
the supervisor in question approved overtime for both tour 2 and tour 1,
the tour which complainant worked, and therefore he could have approved
complainant's overtime.
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without
a hearing on this record. The Commission's regulations allow an AJ to
issue a decision without a hearing when s/he finds that there are no
genuine issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003). We find that
the AJ's determination to issue a decision without a hearing (summary
judgment) was appropriate, because there is no genuine issue of material
fact to be resolved at a hearing.
The Commission finds that, even if we assume that complainant
established a prima facie case of discrimination as to all bases, the
agency articulated legitimate nondiscriminatory reasons for its actions;
namely, that a different supervisor on a different tour was responsible
for determining whether and how much overtime complainant worked than the
proffered comparator (who worked on a different tour than complainant),
and that complainant was approved a total of 46.36 hours during the time
in question. To show pretext, complainant contends that the supervisor
in question (Black/Hispanic) allowed more overtime to a Hispanic employee.
The record reveals however, that approving overtime was the responsibility
of each individual supervisor and that complainant was not supervised
by the supervisor in question. As such, the Commission agrees that
complainant failed to show that the agency's reasons were a pretext for
discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order.
Accordingly, we find the Administrative Judge's issuance of a decision
without a hearing was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred as alleged.
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
September 25, 2009
Date
1 Initially, the agency erroneously indicated that the investigation
covered the period of March 11, 2006, through March 17, 2006. The AJ
corrected the dates in his decision.
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0120080139
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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