01a41427
07-28-2005
Willie Manning, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Willie Manning v. United States Postal Service
01A41427
July 28, 2005
.
Willie Manning,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41427
Agency No. 1E-857-0002-02
Hearing No. 350-2003-08181X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant
to 29 C.F.R. � 1614.405.
Complainant, a Clerk at the agency's Tuscon, Arizona facility, filed
a formal EEO complaint on January 9, 2002, claiming that the agency
discriminated against him on the bases of race (African-American) and
disability (back, headaches, and neck).<1>
By letter dated June 10, 2002, the agency determined that complainant's
complaint was comprised of seven claims, identified as follows:
1) On August 21, 2001, a supervisor asked [complainant] to work outside
of [his] restrictions.
2) On September 14, 2001, [complainant] received a Letter of Warning
(LOW).
3) On September 10, 11, 19, 2001, [complainant was] not included in
stand-ups.
4) On September 17, 2001, [complainant's] change of schedule was denied.
5) On September 19, 2001, [complainant's] supervisor yelled at [him].
6) On September 19, 2001, [complainant was] told [his] supervisors were
watching [him].
7) On September 28, 2001,[complainant's] job was abolished.
The agency accepted claims (2), (3), (4), and (7) for investigation.
The agency dismissed claims (1), (5), and (6) for failure to state a
claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Regarding claim (1),
the agency noted that complainant did not allege that he was actually
worked outside of his medical restrictions, but that he was merely asked
to work outside of his restrictions.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On October 3, 2003, the AJ issued a decision without a
hearing, finding no discrimination.
Regarding claim (2), the LOW, the AJ stated that the record reflected
that the LOW was rescinded and reduced to a discussion. The AJ further
noted that complainant had not claimed that the LOW was retained in his
personnel file.
Regarding claim (3), complainant not being included in stand-up
discussions, the AJ stated that complainant did �not allege facts which
demonstrate that his exclusion from the �stand up� talks caused him to
be injured with respect to a term, condition, or privilege of employment.�
Regarding claim (4), the denial of complainant's request for a schedule
change, the AJ stated that the agency articulated a legitimate,
nondiscriminatory reason for its action. Specifically, the AJ noted
that complainant's supervisor stated that complainant's new supervisor
would have to determine if the needs of the service could accommodate his
schedule request. The AJ noted that complainant attempted to establish
pretext by asserting that another employee (E1) was granted a change
in her schedule; however, the AJ further noted that �other than his
conclusory allegation, complainant did not cite to either record evidence,
...or other documentary evidence that [E1] worked on the same work shift
as him or under the direction of the same immediate supervisor. Also,
no evidence was provided which, if proven true, actually demonstrates that
[E1] requested to have her schedule changed and that it was approved.�
Regarding claim (7), complainant's job being abolished, the AJ stated
that the agency articulated a legitimate, nondiscriminatory reason
for its action. Specifically, the AJ stated that an agency official
indicated that a determination was made by the Plant Manager to abolish
all SCF dispatch positions. The AJ further concluded that complainant
failed to present sufficient evidence that the agency's reason was
pretext for discrimination. The AJ noted that other SCF clerks outside
of complainant's protected classes also had their positions abolished
on the same date as complainant.
The agency's final order dated November 28, 2003, implemented the AJ's
decision.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Dismissed Claims: (1), (5), and (6)
The Commission determines that the agency properly dismissed claims (1),
(5), and (6) for failure to state a claim. The regulation set forth at 29
C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall
dismiss a complaint that fails to state a claim. An agency shall accept
a complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Regarding claim (1), a supervisor asked complainant to work outside of
his medical restrictions on August 21, 2001, complainant stated that the
agency did not actually work him outside of his medical restrictions.
The record contains a letter to complainant from an EEO Specialist dated
November 14, 2001. Therein, the EEO Specialist asks complainant if the
agency actually worked him outside of his restrictions. Complainant
replied to the EEO Specialist by letter dated November 28, 2001.
Therein, complainant stated �no, because I explained to [the supervisor]
my situation even though she [k]new I was on light duty.� Based on
these circumstances, we find that claim (1) fails to state a claim.
Regarding claims (5) and (6), complainant's supervisor yelled at him
and he was told that his supervisors were watching him, we determine
that complainant has not suffered a harm or loss with respect to a
term, condition, or privilege of employment. Moreover, we do not find
that claims (1), (5), and (6) are sufficiently severe or pervasive to
state a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Claim (2): LOW
Regarding claim (2), the Commission determines that the AJ properly found
that complainant failed to establish a prima facie case of discrimination.
The record supports the AJ's assertion that the LOW was reduced to a
discussion. The record contains a Grievance Summary Step 1 form, signed
by a management official, dated October 14, 2001. Therein, management
agreed to settle the issue of complainant's LOW by rescinding the LOW
and reducing it to a discussion. This Commission has consistently held
that official discussions alone do not render an employee aggrieved.
See Miranda v. United States Postal Service, EEOC Request No. 05920308
(June 11, 1992); Devine v. United States Postal Service, EEOC Request
No. 05910269 (April 4, 1991). Furthermore, as the AJ noted, complainant
does not assert that the LOW has been retained in his personnel file.
Claim (3)-Stand-Up Discussions
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case 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).
While the AJ stated in his decision that complainant's not being
invited to attend stand-up discussions did not result in a harm or
loss to a term, condition, or privilege of his employment, we disagree.
Complainant claims that he was not invited to attend stand-up discussions
based on his protected classes and thus failed to receive the same
information provided to similarly situated employees, outside of his
protected classes. Nonetheless, we determine that the agency articulated
legitimate, nondiscriminatory reasons for its actions. A supervisor
(S1) stated that if complainant did not attend a stand-up discussion,
it was an oversight or he was not at work. S1 further stated that some
clerks were assigned to other areas of the building and could not attend.
In addition, we note that the record reflects that complainant attended
stand-up discussions prior to and subsequent to the dates of the alleged
incidents in September 2001. We find that complainant has failed to
present sufficient evidence that the agency's reasons were pretext for
discrimination.
Claim (4)-Denial of Request for Schedule Change
The agency articulated legitimate, nondiscriminatory reasons for denying
complainant's request for a schedule change. The record contains a copy
of a PS Form 3189, Request for Temporary Schedule Change for Personal
Convenience, from complainant dated September 17, 2001. Therein, a
supervisor (S2) disapproved complainant's request for a schedule change
and included the following handwritten notation, �[n]ew supervisor needs
to decide for needs of service.� In addition, the record contains
an affidavit from S2. Therein, S2 states that he was complainant's
supervisor for only twenty days and that complainant's new supervisor
would have to determine if the needs of the service could accommodate
his request for a change in schedule.
We further find that the record supports the AJ's assertion that
complainant failed to present sufficient evidence that the agency's reason
was pretext for discrimination. Complainant asserted that a Caucasian
employee (E1) had her request for a schedule change approved; however,
the record does not contain evidence that E1 even requested a schedule
change, which was subsequently approved. In addition, as the AJ noted,
the record does not contain evidence as to whether complainant and E1
were similarly situated. Furthermore, in his affidavit, complainant did
not identify any similarly situated employees outside of his protected
classes, that were granted requests for schedule changes. Based on the
foregoing, complainant's mere assertion that another employee was granted
a schedule change does not create a genuine issue of material fact.
Claim (7)-Abolishment of Position
The agency articulated legitimate, nondiscriminatory reasons for
abolishing complainant's position. The record contains a letter from
the MDO, Tour II to complainant dated September 6, 2001. Therein,
the MDO states that complainant's bid job is being abolished due to
the �acceptance of the AAA system.� In addition, the record contains
an affidavit from another agency manager (M1). Therein, the M1 states
that all SCF dispatch jobs were abolished.
Complainant attempts to establish pretext by asserting that only his
position and the position of another African-American employee were
abolished, and that their jobs are being performed by �white employees
on light duty.� In addition, complainant provides copies of clock rings
reflecting that other employees are being coded as working in the SCF
(044) area and statements from agency employees that other clerks are
currently working in the SCF area. In his affidavit, M1 states that
the other employees who have worked in the SCF are on light duty from
the Automation Section. M1 further states that clerks from the 150/160
operation are also used to staff the SCF area, as the volume in the
150/160 section drops due to automation advances. Nonetheless, the
record does not support complainant's assertion that only his position
and the position of another African-American employee were abolished.
The record reflects that the positions of SCF clerks, outside of
complainant's protected classes, were also abolished. Specifically,
the record contains copies of letters sent to other SCF clerks,
outside of complainant's protected classes, dated September 6, 2001,
informing them that their positions were being abolished due to the
�acceptance of the AAA system.� Moreover, the record does not reflect
that only white employees are currently performing the work in the SCF
area, complainant asserted, in a statement to the AJ, that management,
at times, had him clock in and work in the SCF area, subsequent to his
position being abolished. Based on these circumstances, the Commission
finds that no genuine issue of material fact exists.
Upon careful review of the record, the Commission finds that grant of
summary judgment was appropriate, for the reasons stated herein. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present sufficient evidence that any of
the agency's actions were motivated by discriminatory animus toward
complainant's protected classes. Accordingly, we AFFIRM the agency's
final order implementing the AJ's finding of no discrimination regarding
four claims, and its dismissal of the remaining three claims.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 28, 2005
__________________
Date
1For purposes of analysis only, we assume, without finding, that
complainant is an individual with a disability.