0120162309
10-27-2016
Wilbert W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilbert W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120162309
Hearing No. 510-2015-00210X
Agency No. 1G-336-0093-14
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 9, 2016 final action concerning an equal employment opportunity (EEO) complaint claiming 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a EAS Level 22 Manager, Distribution Operations at the Agency's Seminole Plant and Distribution Center (Seminole Plant) in Orlando, Florida.
On October 27, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (back), and age (over 40) when, on July 22, 2014, Agency management notified him that his scheduled reporting time was changed to 10:00 p.m.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On July 26, 2016, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts:
Complainant worked for the Agency for over 41 years. The Seminole Plant has only three funded Manager of Distribution Operations positions - Level 19, Level 20, and Level 22. Of the three Distribution Managers working at the Seminole Plant, Complainant possessed the greatest seniority.
In December 2012, Complainant's schedule was Tour 1 from 7:00 p.m. to 4:00 a.m. Since February 23, 2013, Complainant's schedule was Tour 1 from 9:00 p.m. to 8:00 a.m. Beginning on or around June 2013, Complainant's schedule was altered due to a detail. Under this detail, Complainant reported to duty at 9:00 a.m.
Before November 2013, the Seminole Plant had only two Distribution Managers to cover its operations. In November 2013, the Seminole Plant earned a third position, resulting in one Manager for each 8-hour operational tour. The Acting Plant Manager allowed the three Managers of Distribution Operations to select, unofficially, which schedule they preferred to work. Complainant selected Tour 2 with a 5:00 a.m. report time. However, Complainant was not permanently reassigned to Tour 2 and not permanently scheduled to report at 5:00 a.m.
On February 26, 2014, the Manager of In-Plant Support (Manager) sent an e-mail to senior management at the Seminole Plant requiring documentation supporting any employee working outside of his or her official schedules. On March 11, 2014, the Acting Plant Manager documented Complainant's temporary schedule change via a detail assignment. Pursuant to the document, Complainant's report time was modified from 9:00 p.m. to 5:00 a.m. Complainant's detail was not permanent.
The AJ noted that changes to mail processing operations at the Seminole Plant had shifted more mail processing responsibility to Tour 1. The Tour 2 Manager of Distribution Operations position no longer justified a Level 22 position because the tour had fewer personnel and less mail volume than Tour 1. The Plant Manager determined that the senior ranking and most experienced Distribution Manager should manage the highest volume mail shift.
Therefore, on June 10, 2014, the Plant Manager decided that, effective June 14, 2014, he would assign each Manager of Distribution Operations to a tour based on EAS Level and mail volume (i.e. the lowest graded (EAS-19) more junior manager was assigned to the lowest mail volume tour). Complainant, was the highest EAS Level Manager of Distribution Operations and, therefore, was returned to Tour 1 with a start time of 10:00 p.m. The scheduled changes were delayed. However, on July 22, 2014, the Plant Manager notified Complainant that his work schedule would change effective July 26, 2014. Complainant would start work at 10:00 p.m. - 6:30 a.m., and his scheduled days off would be Sunday/Monday.
Complainant disagreed with the proposed changes to his schedule and claimed he did not want to work Tour 1. The Plant Manager reiterated that the highest-level manager should work the highest mail volume tour. The Plant Manager proposed that if Complainant wanted to remain on Tour 2, he could apply for the lower-level m position. Complainant did not bid on the Tour 2 Manager of Distribution Operations position.
The AJ noted that on July 14, 2014, Complainant contacted the Human Resources Manager (HR Manager) discussing his objections to the schedule change. Complainant claimed that he suffered from Chronic Lumbar Spinal Stenosis, and experienced extreme back pain since 1998. Complainant asserted that Agency management was aware that he could not work night shift "due to medication and sleep regimen" to rest and manage chronic pain. Complainant sought to work on the day shift as a reasonable accommodation for his alleged disability. The HR Manager forwarded Complainant's objections to the Occupational Health Nurse Administrator (Nurse Administrator) with instructions to send him a District Reasonable Accommodation Committee (DRAC) packet.
On July 18, 2014, the Nurse Administrator sent a digital reasonable accommodation packet to Complainant's electronic mail account and a hard copy to Complainant's official address of record. On July 24, 2014, Complainant submitted medical documentation indicating that he was medically unable to report to duty until September 4, 2014 due to right leg weakness, back pain and neck and arm pain. The AJ noted that by August 5, 2014, Complainant had not completed the July 18, 2014 DRAC packet. The Nurse Administrator contacted Complainant in an attempt to facilitate the DRAC packet's completion.
On September 3, 2014, Complainant submitted medical documentation indicating that he would continue to be medically unable to report to duty until October 5, 2014. On October 17, 2014, Complainant submitted additional medical documentation stating that he was medically unable to report to duty for the foreseeable future. On January 6, 2015, the Nurse Administrator closed Complainant's request for a reasonable accommodation because he had not received clearance to return to duty (i.e. there was no reasonable accommodation that could facilitate the performance of Complainant's essential functions). As of the date of the AJ's decision, Complainant had not returned to duty.
The AJ noted that Complainant acknowledged that the Plant Manager explained to him that the senior Level 22 Manager Distribution Operations would work the night shift. The day shift position was posted at a lower level and awarded to a manager with less seniority and experience, a dark skinned female. The Agency offered Complainant the opportunity to take a downgrade. However, Complainant declined the offer. The AJ noted that Complainant stated that managers had always been given the choice of shifts. Complainant believed that the Plant Manager forced him to work night shift, knowing that he could not work nights forcing him to retire.
Further, Complainant alleged that another Level 22 Manager Distribution Operations (African-American male and over 40 years old) received better treatment than him. Specifically, Complainant stated that the Manager Distribution Operations who worked at the Orlando, Florida Processing and Distribution Center was allowed by his supervisor to work the day shift.
The AJ noted that the Plant Manager acknowledged that Complainant had back problems, and that on or about August 2, 2014, he received medical documentation corroborating this impairment. The Plant Manager further stated that Complainant was working on a temporary assignment order when he started working at the plaint in May 2014. The Plant Manager stated that the temporary assignment allowed Complainant to work the day shift. Complainant was the only Level 22 Manager Distribution Operations and needed to be managing the facility when the most operational activity occurred (i.e. during Tour 1).
The Plant Manager stated that he explained the reasoning to Complainant when he changed his work hours. Specifically, the Plant Manager stated that Complainant informed him that he could not work night shift because "he did not want to." The Plant Manager stated that during the relevant period, he placed a Level 19 Manager Distribution Operations to day shift at the Seminole Plant because there were "fewer responsibilities" on that shift. The AJ also noted that a named Level 20 Manager Distribution Operations worked Tour 3.
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if he had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Here, Complainant has not, either at the hearing stage or on appeal, pointed to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. Therefore, we find no error in the AJ's decision to adjudicate this case without a hearing.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant felt that he was targeted based on his disability. However, the record does not support this assertion. The undisputed evidence of record supports the AJ's conclusion that Complainant, as the highest graded manager with the most experience was assigned to Tour 1 because this was the shift with the greatest operational needs due to high mail volume. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
We also note that to the extent Complainant is alleging a failure to accommodate his disability, the undisputed evidence shows that the Agency was willing to process his accommodation request through its DRAC, but Complainant never submitted the requested paperwork or pursued the option because he never returned to work.
For the reasons stated above, the Agency's final action implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 27, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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