0120091012
05-21-2009
Stanley K. Cyganik, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stanley K. Cyganik,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091012
Hearing No. 540-2008-00025X
Agency No. 4E-852-0105-07
DECISION
On December 12, 2008, complainant filed an appeal from the agency's
November 19, 2008 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
During the relevant period, complainant was employed as a City Carrier at
an Arizona facility of the agency. In a formal EEO complaint, complainant
alleged that the agency discriminated against him on the basis of reprisal
for prior protected EEO activity when, on various dates between January
and March 2007, his station manager (S1) forced him to work hours for
which he had pre-approved leave and that were beyond his nine hour work
restriction. Later, complainant amended his complaint several times but
then rescinded most additional claims. The one additional claim that
remains is that the agency discriminated against complainant based on age
(over 40) when S1 changed complainant's start time to 8:00 a.m.
During the agency investigation, a Customer Service Supervisor (S2)
stated that complainant was never instructed to work beyond his nine hour
restriction, when it was in place. S2 stated that there was a time when
complainant's restriction needed to be updated and complainant failed to
submit appropriate documentation when asked to do so. S1 stated that
management conducted a route inspection that timed complainant's route
at seven hours and six minutes and he was given relay duties to make
an eight hour day, but he stretches his route to nine hours or more to
avoid relay duties. Further, S2 stated that start times in zone 22 for
all routes on Thursdays, Fridays and Saturdays were changed and said
change included complainant.
Following the agency investigation, the agency provided complainant with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. The AJ determined that summary judgment was appropriate and,
without a hearing, on November 13, 2008, issued a decision finding no
discrimination. Specifically, the AJ found that complainant failed to
show pretext. Subsequently, the agency issued a final order implementing
the AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged. The instant appeal from complainant followed.
On appeal, complainant stated that S1 used a flawed system to determine
the length of time needed to complete his route and that the standard
carriers were required to meet was based on discriminatory motives.
In rendering this appellate decision, we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999) (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (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").
As an initial matter, we find that there is no genuine issue of material
fact here and it appropriate for the AJ to have issued a decision
without a hearing on this record. See 29 C.F.R. � 1614.109(g).
Next, we find that complainant failed to establish by a preponderance of
the evidence that discrimination occurred. 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 Corp. 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 U. S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't 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 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't
of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the instant matter, we find that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus toward
his protected classes. We find that complainant failed to show pretext.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency 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
May 21, 2009
__________________
Date
2
0120091012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091012