0120073890
07-24-2009
William B. Wherry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
William B. Wherry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120073890
Hearing No. 450-2007-00186X
Agency No. 1G-753-0012-07
DECISION
On September 7, 2007, complainant filed an appeal from the agency's August
20, 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. 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
The issues presented are: (1) whether the EEOC Administrative Judge's
(AJ) issuance of a decision without a hearing was appropriate; (2)
whether complainant established that he was subjected to disparate
treatment and a hostile work environment on the bases of race and sex.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Mail Processing Clerk at the agency's Processing &
Distribution Center in Dallas, Texas. On December 21, 2006, complainant
filed an EEO complaint alleging that he was discriminated against on the
bases of race (African American) and sex (male) when: (1) on October 25,
2006, November 2, 2006, and November 9, 2006, he was told not to talk
to his co-workers; and (2) he was denied overtime opportunities.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an AJ. Complainant timely requested a hearing. Over the
complainant's objections, the AJ assigned to the case granted the agency's
July 6, 2007 motion for a decision without a hearing and issued a decision
without a hearing dated July 19, 2007. The AJ's decision found that claim
(1) failed to state a claim "under either an intentional discrimination
analysis or a hostile work environment analysis." With respect to claim
(2), the AJ found that complainant failed to establish a prima facie
case of discrimination. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that he was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that he was subjected to discrimination
and a hostile work environment when he was ordered not to talk to his
co-workers while working and denied overtime opportunities. In response,
the agency urges the Commission to affirm its final decision. The agency
argues that the AJ properly issued a decision without a hearing finding
no discrimination on all claims.
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 have
issued a decision without a hearing on this record. 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).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists such that a hearing on the merits is warranted.
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 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).
Assuming arguendo that claim (1) stated a valid claim upon which relief
could be granted, we find that complainant failed to establish a prima
facie case of race or sex discrimination because he was not subjected to
an adverse action when he was told not to talk to his co-workers while
he was working. Moreover, we find that complainant failed to provide
any evidence from which an inference of race or sex discrimination
could be established. The Manager, Distribution Operations submitted
a statement into the record stating that complainant was asked to stop
talking and focus on "throwing parcels" because there were problems with
"missent mail," and he wanted every employee to focus on his/her duties.
The Manager further stated that when he spoke with complainant,
complainant had spent more than 15 minutes talking and had stopped
working. The Manager stated that he did not recall telling other
employees not to talk to their co-workers, but he emphasized that if
he saw employees making mistakes while socializing during work he would
advise them to "focus on what they are doing and refrain from talking."
With respect to claim (2), complainant alleged that employees in
another unit were allowed to work overtime while he was not allowed
to do so due to his race and sex. Assuming arguendo that complainant
established a prima facie case of discrimination, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Complainant's supervisor, the Supervisor, Distribution Operations,
submitted statements into the record stating that she supervises the
unit that processes priority mail and that overtime "depends on the
mail volume." The supervisor stated that priority mail has a dispatch
time of 4:45 a.m., and more assistance is occasionally needed to assist
in the processing in the "evening and night hours." Tour 3 employees
finish their regular tour at approximately 10:00 p.m. or 11:00 p.m.,
and they may be asked to work overtime when their tour comes to an end.
Tour 1 employees, such as complainant, end their schedule at 4:45 a.m.,
when the priority mail processing would be completed, and, as a result,
Tour 1 employees are less likely to be given overtime. The supervisor
noted that Tour 1 employees do sometimes have overtime opportunities
before their tour begins if management is aware that more assistance is
needed to finish processing the priority mail by 4:45 a.m.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we concur with the AJ's determination that
complainant failed to provide any evidence of pretext in the record.
Furthermore, we find that the record is devoid of any evidence that
the agency's actions were motivated by discriminatory animus towards
complainant's race or sex. We note that complainant has worked overtime
in the past and that management officials confirmed that his name was
on the overtime desired list.
Finally, to the extent that complainant is alleging that he was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A prima facie case of hostile work environment is precluded
based on our finding that complainant failed to establish that any of
the actions taken by the agency were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000).
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant also failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus towards him. We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, the agency's final
order is AFFIRMED.
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
________07/24/09__________
Date
2
0120073890
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120073890