0120101030
06-17-2010
Timothy F. Roberts,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101030
Hearing No. 550-2009-00049X
Agency No. 1F-941-0032-08
DECISION
INTRODUCTION
On January 4, 2010, Complainant filed an appeal from the Agency's 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. and 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.
BACKGROUND
During the relevant period, Complainant worked as a full-time Mail
Handler at a San Francisco, California processing and distribution
center of the Agency. He filed a formal EEO complaint alleging that
the Agency discriminated against him on the bases of race (White), sex
(male), disability (Psoriasis, Rotator Cuff Tear, Psoriatic Arthritis),
and reprisal for prior protected EEO activity when, effective March 15,
2008, the Agency abolished or "excessed" his bid assignment. Further,
Complainant stated that he learned that bid assignment 8522687 was
vacated on September 14, 2007. The Agency conducted an investigation
of Complainant's claim.
During the investigation, the District Complement Coordinator (S1)
stated that Complainant and others were "excessed" due to reduced
workload and removal of three automated machines from the San Francisco
processing and distribution center. S1's Affidavit (S1 Aff.), at page 3.
S1 stated that she did not know Complainant and was unaware of his prior
EEO activity. She added that all affected mail-handlers were encouraged
to exercise their rights to bid on monthly vacant bid postings and were
provided a list of residual bids from which to select. Id. S1 noted
that bid jobs were awarded based on seniority. Finally, S1 stated,
"[I]t appears [Complainant] was never removed from his position or pay
location . . . salary or schedule," and that bid assignment 8522687 was
not vacated but given a new number based on Personnel Office changes.
S1 Aff., at pages 4 and 6. A Senior Manager of Distribution Operations
(S2) stated that Complainant's position was "excessed" based on employee
availability and seniority and said reassignment was based on a collective
bargaining agreement. 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) or an immediate final Agency decision. Complainant timely
requested the former.
Without a hearing, on December 15, 2009, the assigned AJ issued a
decision finding no discrimination. Specifically, the AJ concluded that
Complainant is unable to establish that the Agency treated him disparately
as to staffing realignment/excess job procedures on the bases of race,
sex, disability or reprisal. AJ December 15, 2009 decision, at page 8.
Later in December 2009, the Agency issued a final order adopting 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 seniority was not the motivation
for his bid abolishment. He added that the vast majority of employees
unaffected were outside of his protected race class and were not on
limited/light duty; and that the Agency included innocent employees in
the realignment to conceal its discriminatory actions.
ANALYSIS AND FINDINGS
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").
We must first determine whether it was appropriate for the AJ to issue a
decision without a hearing on this record. The Commission's regulations
allow AJs to issue a decision without a hearing when they find that there
is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth
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). In ruling
on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues
for trial. Id. at 249. The evidence of the non-moving party must be
believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. at 255. An issue of
fact is "genuine" if the evidence is such that a reasonable fact-finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case.
Here, we find that the AJ appropriately rendered a summary judgment
decision and that Complainant failed to establish by a preponderance of
the evidence that discrimination occurred.1 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). 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, 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
June 17, 2010
__________________
Date
1 We assume for the purpose of analysis that Complainant is an individual
with a disability. See 29 C.F.R. � 1630.2(g)(1).
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0120101030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101030