Terrence Shalow, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionJun 18, 2010
0120080623 (E.E.O.C. Jun. 18, 2010)

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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