0120080623
06-18-2010
Terrence Shalow, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Terrence Shalow,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120080623
Hearing No. 270-2005-00099X
Agency No. 1G-711-0003-04
DECISION
On November 16, 2007, Complainant filed an appeal from the Agency's
October 18, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Equal
Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Mail Processing Clerk at the Agency's Processing & Distribution Center
in Shreveport, Louisiana. On December 23, 2003, Complainant filed an
EEO complaint alleging that he was discriminated against on the bases of
race (Black), sex (male), disability (arm/shoulder and mental stress),
and in reprisal for prior protected EEO activity when:
1. On September 23, 2003, his request for additional Employee Assistance
Program (EAP) counseling was not granted;
2. On October 1, 2003, his medical restrictions were violated, he was
not given a Duty Status Report (CA-17) upon request, and his request
for a union steward was not granted;
3. On October 2, 2003 he became aware that he was denied a higher pay
level and another employee was receiving higher pay; and,
4. On November 14, 2003, he was issued a 14-day suspension.
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). Complainant timely
requested a hearing and the AJ held a hearing on March 8, 2007.
Before issuing a decision and for reasons not stated in the record,
the AJ assigned to this case stepped down. A newly-assigned AJ issued
a decision on October 3, 2007. On appeal, Complainant acknowledges the
change in Administrative Judges, but does not challenge or allege error
as to the substitution.
In his decision, the AJ dismissed claim (1) for failure to state a claim.
The AJ found that Complainant's supervisor (S1) had no authority to
approve or disapprove Complainant's request for further counseling
through EAP. Additionally, Complainant admitted that he did not know
if he had exhausted his EAP counseling.
Next, as to claim (2), the AJ found that even if it took S1 several days
to provide the requested form, Complainant failed to show that this delay
affected a term, condition, or privilege of his employment. Assuming the
incident did state a claim, the AJ found that the record did not show any
discriminatory or retaliatory animus. Further, the AJ determined that
Complainant failed to state a claim when S1 failed to act on his request
for a union steward that same day. The AJ found that Complainant has
not shown how the failure to meet with a union steward on the day he made
his request affected a term, condition, or privilege of his employment.
Assuming that he had stated a viable claim, the AJ held that the Agency
had articulated a legitimate, nondiscriminatory reason for its actions.
The record revealed that Complainant wanted a union steward of his own
choosing and not the assigned union steward. As Complainant failed to
establish that the Agency's reason was pretextual, the AJ determined
Complainant had not been discriminated or retaliated against as alleged.
Regarding claim (3), the AJ found that Complainant failed to establish a
prima facie case of sex-based discrimination under the EPA or Title VII.
The female comparator was not performing the same tasks in the same
manner as Complainant. The comparator's job required more knowledge, and
involved greater responsibilities, including quality oversight of the work
performed by employees with Complainant's duties. Thus, Complainant had
not established that he was discriminated against on the bases of sex.
Finally, as to claim (4), the AJ found that Complainant failed
to establish by a preponderance of the evidence that the Agency's
articulated reason for the issuance of the 14-day suspension was a pretext
for unlawful discrimination on the bases of race, sex, disability,
or retaliation. The AJ determined that Complainant was issued the
suspension after he failed to conduct an Accident Review Board Meeting
on October 9, 2003, as instructed. Complainant admitted that he did not
attend the meeting and that he knew that he was to conduct the meeting.
The AJ determined that Complainant failed to show that the Agency's
reasons for the suspension were pretextual. Accordingly, the AJ held
that Complainant had not been discriminated or retaliated against on
any of the alleged bases. The Agency subsequently issued a final order
adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates arguments stated previously and many
unrelated to the instant matter. Complainant asserts that S1 took
delight in issuing him discipline and his actions in claim (2) were
clearly reprisal. Additionally, Complainant alleges that the Agency
failed to comply with the Personnel Operations handbook regarding the
duties of a Review Clerk. Finally, Complainant believes that he was
retaliated against because of his representation of other employees from
January 2003 through September 2003. Accordingly, Complainant requests
that we reverse the final order. The Agency requests that we affirm
the final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Although the substantial evidence standard usually governs our review of
appeals after a hearing has been held, under these unusual circumstances,
we will review this decision de novo, for the following reason. The
Commission acknowledges that a hearing was held. However, the AJ who
ultimately issued the decision was not present during the hearing and
was thus unable to observe witness demeanor. Under a de novo standard
of review, the Commission will review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties and issue its decision based on its own assessment of the
record and its interpretation of the law.
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, 120 S.Ct. 2097 (2000); 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).
For purposes of analysis, we will assume that Complainant is an individual
with a disability and has otherwise established a prima facie case of
discrimination on all of the alleged bases. Nonetheless, we find that
the Agency provided legitimate, nondiscriminatory explanations for its
actions. Specifically, as to claim (1)1, the record reveals that EAP
counseling is provided to employees during non-work hours and employees
are able to receive EAP counseling without prior management referral.
Hearing Transcript (Hr'g Tr.), at 95-96. Employees have the liberty to
call a toll-free number to receive EAP counseling on their own initiative.
Id. at 46, 114. Complainant also admits that he was aware that he could
call the toll-free number without managerial referral. Id. at 94-96.
As to the alleged violation of Complainant's medical restrictions in claim
(2), S1 asserts that if Complainant's medical restrictions were violated,
he violated them on his own without management's knowledge. Report of
Investigation (ROI), S1's Aff. at 10. Further, the record reveals that
the task Complainant was asked to complete was to assist in pulling down
mail for a few minutes which did not violate any of his restrictions.
Id. at 26; Hr'g Tr. at 77. As to the denial of the CA-17 form, the record
reveals that the CA-17 form was ultimately completed by October 6, 2003,
and S1 simply forgot to give the form to Complainant earlier. ROI,
Complainant's Aff. Aff. at 6; Hr'g Tr. at 105. Finally, regarding the
denial of his request for a union steward, S1 affirms that the procedure
is for management to provide a union steward assigned to the section
and Complainant wanted to see the union steward of his choice. ROI,
S1's Aff. at 10. Complainant was provided the opportunity to see the
designated union steward; however, he refused to see that steward. Id.
As to claim (3), the Plant Manager (PM) testified that the co-worker
Complainant alleges was paid more was a Review Clerk and had more
duties than Complainant. Hr'g Tr. at 127-128. PM further testified
that the duties of the Review Clerk included running proficiency checks
on all employees on the Tour, including Complainant, and required more
expertise and knowledge of the geographic area. Id. at 127. Finally, PM
confirmed that a Review Clerk was a level six position while Complainant,
as a Mail Processing Clerk, was classified as a level five position.
Id. at 128-129. As Complainant did not have a bid job as a Review Clerk,
he would not have received the same level of pay as a Review Clerk.
Id. at 129.
Finally, regarding claim (4), S1 asserts that Complainant was issued
the 14-day suspension after he failed to attend a mandatory Accident
Review Board meeting that he had been instructed to conduct. ROI, S1's
Aff. at 11. The record reveals that Complainant refused to participate in
the meeting, laid a package of papers on the table, stated everything he
needed to say was in the handouts, and walked out of the meeting. ROI,
S1's Aff. at 44. Complainant admits that he knew that it was standard
procedure for employees who suffer on-the-job injuries to participate
in an Accident Review Board meeting to investigate how the injury
was suffered. ROI, Complainant's Aff. at 4. Further, Complainant
acknowledges that he did not conduct the meeting; rather, he placed
handouts on the desk for the attendees and went back to work. Id.
The record reveals that Complainant's prior discipline was considered
in issuing the suspension.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Aside from Complainant's
bare assertions, the record is devoid of any persuasive evidence that
discrimination was a factor in any of the Agency's actions. At all
times the ultimate burden of persuasion remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons, and that the Agency acted on the basis of
discriminatory animus. Complainant failed to carry this burden. Thus,
the Commission finds that Complainant failed to establish that he was
subjected to discrimination or reprisal as alleged.
Wage Discrimination
We note that Complainant contends that he was not paid the same as a
female Review Clerk, which could be viewed as an alleged violation of
the Equal Pay Act. The U.S. Supreme Court articulated the requirements
for establishing a prima facie case of discrimination under the EPA in
Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). To establish
a violation of the EPA, a complainant must show that he or she received
less pay than an individual of the opposite sex for equal work, requiring
equal skill, effort and responsibility, under similar working conditions
within the same establishment. Id. at 195; Sheppard v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01A02919 (September 12, 2000);
see also 29 C.F.R. � 1620.14(a).
Once a complainant has met the burden of establishing a prima facie
case, an employer may avoid liability only if it can prove that the pay
difference is justified under one of the four affirmative defenses set
forth in the EPA, namely: (1) a seniority system; (2) a merit system;
(3) a system which measures earnings by quantity or quality of production
of work (also referred to an incentive or piecework system); or (4)
a differential based on any other factor other than sex. 29 U.S.C. �
206(d)(1); Corning Glass Works, 417 U.S. at 196-97; Kouba v. Allstate
Insurance Co., 691 F.2d 873 (9th Cir. 1982). The requirement of "equal
work" does not mean that the jobs must be identical, but only that
they must be "substantially equal." Id. (citing Corning Glass Works,
417 U.S. at 203, n. 24; Homer v. Mary Institute, 613 F.2d 706, 714
(8th Cir. 1980); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 449
(D.C. Cir. 1976)).
In the instant case, Complainant failed to establish a prima facie
violation of the EPA because he did not show that the comparator was paid
higher wages for equal work. The record reveals that the comparator's
duties required more knowledge, and involved greater responsibilities,
including quality oversight of the work performed by employees with
Complainant's duties. Thus, the Commission finds that Complainant failed
to prove that the Agency violated the EPA.
Accordingly, the Commission concurs with the AJ's finding that Complainant
failed to proffer any evidence to show that any of the Agency's actions
were motivated by discriminatory or retaliatory animus. The AJ properly
found that the Agency articulated legitimate, nondiscriminatory reasons
for its actions which Complainant failed to show were a pretext for
discrimination based on his race, sex, disability, or in reprisal for
his prior protected activity. Based on the facts of this record, the
Commission, like the AJ, is not persuaded that management's actions
were unlawfully motivated, and we find no violation of Title VII, the
Rehabilitation Act, or the EPA. We agree with the AJ who issued this
decision that this record does not support a finding of discrimination.
CONCLUSION
Based on a thorough review of the record and complainant's contentions
on appeal, we AFFIRM the Agency's final order.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act
(29 U.S.C. � 216(b)) to file a civil action in a court of competent
jurisdiction within two years or, if the violation is willful, three years
of the date of the alleged violation of the Equal Pay Act regardless
of whether you have pursued any administrative complaint processing.
The filing of the 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 18, 2010_____________
Date
1 We note that while the AJ purported to dismiss claim (1) and parts of
claim (2) on procedural grounds, his analysis was, in part, merit-based.
For this reason, we shall address both claims on the merits.
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0120080623
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080623