0120073360
12-11-2009
Westley S. Lash, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Westley S. Lash,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120073360
Hearing No. 450-2007-00120X
Agency No. 1G-753-0072-06
DECISION
On July 22, 2007, complainant filed an appeal from the agency's June
20, 2007 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.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) properly issued a decision
without a hearing.
2. Whether the AJ properly found that complainant was not subjected to
disability discrimination when the agency removed him from employment
with the agency.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Motor Vehicle Services (MVS) tractor trailer operator at the Dallas,
Texas Processing and Distribution Center. The record reveals that
approximately in November 2000, complainant suffered an injury off
the job which resulted in a chronic back, neck, and nerve condition.
Consequently, the agency approved complainant for leave under the Family
and Medical Leave Act (FMLA) for 1 to 3 days per month from 2004 until
2006 because his health care provider certified that complainant needed
this amount of leave due to his condition. Nevertheless, complainant was
not on limited or light duty status during the relevant time period.
In September 2005, a Transportation Operations Supervisor informed
the agency that complainant had worked for a private competitor (C)
while on FMLA leave with the agency. The agency's Office of Inspector
General (OIG) investigated the matter. In a report dated May 4, 2006,
OIG concluded that based on time and attendance reports from C and the
agency, complainant worked at both the agency and C at least 3 days per
week for an average of 14 hours per day from September 7, 2003 through
September 10, 2005, except for the period from February 13, 2005 through
August 6, 2005. The report further concluded that on 24 occasions from
September 9, 2003 through August 27, 2005, complainant worked at C while
simultaneously taking FMLA leave.
The report further stated that OIG interviewed complainant, and
complainant stated that the agency's MVS drivers are exempt from Federal
Motor Carriage Safety Administration (FMCSA) regulations that limit the
number of hours employees can drive each day. The report also stated that
complainant maintained that when he was on FMLA leave from the agency,
he did not report to work for C.
In a notice dated August 23, 2006, the agency informed complainant that
he would be removed from the agency on September 29, 2006, because,
among other things, he engaged in unacceptable conduct by improperly
using FMLA leave. The letter stated that complainant was also employed
as a driver by C, and time and attendance records revealed that he drove
for both the agency and C three days or more per week from September 27,
2003 through September 10, 2005, with the exception of the period from
February 12, 2005 to August 6, 2005. Additionally, the letter stated
that on 231 occasions from September 7, 2003 through August 27, 2005,
complainant reported to the agency that he was unable to work due to his
FMLA-accepted back condition but simultaneously worked at C. The letter
stated that complainant "falsely requested this leave and abused FMLA
protection when [he was] apparently able to work." Exhibit 3, p. 1.
On October 17, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of disability when the agency
removed him for, among other things, the improper use of leave under
the FMLA.
In an investigative affidavit, complainant stated that although the
OIG report claimed that he was working at C on days when he took FMLA
leave with the agency, he was actually on vacation or off on the days in
question. Complainant further argues that, contrary to the OIG report,
after working at the agency on September 28, 2003 from 7:30 p.m. until
3:30 a.m., he did not go to work again until he reported for work the
next day at the post office 28 hours later. Complainant further stated
that he only worked at C when he was on vacation from the agency or was
not scheduled to work with the agency, and vice versa. As examples
of his contention, complainant indicated that on September 30, 2003,
he was not scheduled to work with the agency and reported to work at
C at 7:30 p.m.; on the morning of October 3, 2003, he called in to the
agency sick, but reported to work for C at 7:30 p.m. because he later
felt better; from November 2 until 7, 2003, he was on vacation from C;
and, December 5, 2003, was a holiday for C.
Additionally, complainant stated that early on the morning of January
2, 2004, he called in to the agency sick, but reported to work for that
evening for only 2.5 hours because he suffered back problems. Finally,
complainant maintained that on January 12, 2004, he called in sick to
the agency but was not scheduled work at C.
The Manager of Transportation Operations stated that complainant was
removed because an investigation confirmed that, among other things,
on 24 occasions, he worked at C while on FMLA leave from the agency.
The Supervisor of Transportation Operations corroborated the Manager's
testimony.
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.
On March 23, 2007, the agency moved for a decision without a hearing,
to which complainant responded in opposition on April 3, 2007. In a
decision dated June 13, 2007, the AJ issued a decision without a hearing
in which she found that complainant was not subjected to unlawful
discrimination. Specifically, the AJ determined that complainant was
not an individual with a disability and failed to establish a prima
facie case of disability discrimination because he did not show that
a similarly situated non-disabled employee was treated more favorably
than he was treated under similar circumstances. The AJ further found
that complainant failed to show that the agency's non-discriminatory
explanations for its actions were pretext for unlawful discrimination.
The agency subsequently issued a final order fully adopting the AJ's
findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ improperly issued a
decision in favor of the agency. Complainant argues that OIG's report
contains errors, and two co-workers also worked second jobs but were not
terminated. Additionally, complainant contends that federal regulations
exempt postal drivers from rules limiting the number of hours drivers
can work per day. The agency requests that we affirm its final order.
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").
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds 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. If a case can only be resolved by weighing conflicting evidence,
issuing a decision without holding a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly consider
issuing a decision without holding 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. 01A24206 (July 11,
2003). We find that the AJ properly issued a decision without a hearing
because complainant failed to show that a genuine issue of material fact
or credibility existed.
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
For purposes of analysis, we assume arguendo that complainant is a
qualified individual with a disability and that he established a prima
facie case of discrimination. Nonetheless, we find that the agency
provided a legitimate, non-discriminatory reason for its actions.
Specifically, agency management stated that complainant was removed
because, among other things, he worked at a private competitor while on
sick leave from the agency.
On appeal, complainant argues that the agency's MVS drivers are exempt
from FMCSA regulations that limit the number of hours employees can drive.
The record contains a copy of a letter dated July 31, 1998 from the
Department of Transportation in which the Acting Director of the Office
of Motor Carrier Research and Standards stated that postal employees
are exempt from FMCSA regulations. Although this letter indicates
that agency drivers are exempt from FMCSA driving regulations, the fact
remains that the agency offered two reasons for complainant's removal
and, as stated below, we find no persuasive evidence that the agency's
alternate ground for complainant's removal, i.e., the improper use of
sick leave, was attributable to discriminatory animus.
Complainant also contends that two other employees worked second jobs,
but were not terminated. Complainant failed to show, however, that these
employees took FMLA leave from the agency while simultaneously reporting
for work at their second jobs. Thus, we find that there is no evidence
that the two coworkers were similarly situated to complainant.
Finally, complainant contends that the OIG report contained errors
regarding his work activity on the following seven dates: September 29,
2003; October 3, 2003, October 4, 2003, November 7, 2003, December 5,
2003, January 2, 2004, and January 12, 2004. Even crediting complainant's
version of the facts as accurate, however, with respect to these seven
dates, complainant failed to rebut the agency's claim that on 17 other
dates, he worked for C while simultaneously on FMLA leave from the agency.
Although complainant generically asserted that he did not report to work
for C when he was on FMLA leave, he failed to provide a specific account
of his work activity for any of the remaining 17 dates in question.
We note that the Commission has held that the party opposing a decision
without a hearing must identity the disputed facts in the record with
specificity. See Patton v. United States Postal Service, EEOC Request
No. 05930055 (July 1, 1993) (summary judgment proper where complainant
made only a general assertion that his job performance was good, but
set forth no specific facts regarding his performance).
Consequently, we find that complainant failed to provide any evidence
from which a reasonable fact-finder could conclude that the agency's
non-discriminatory reason that complainant misused sick leave was a
pretext for unlawful discrimination. Thus, we find that the AJ properly
found that complainant failed to establish discrimination.
CONCLUSION
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, because 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.
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
______12/11/09____________
Date
1 We note that the OIG investigation indicated that complainant worked
for C while on FMLA leave on 24 occasions.
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0120073360
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073360