0120142445
10-30-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120142445
Hearing No. 550-2014-00057X
Agency No. 1F-957-0021-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 22, 2014 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.
BACKGROUND
During the period at issue, Complainant worked as a Tractor Trailer Operator (TTO) at the Agency's Sacramento Processing and Distribution Center in West Sacramento, California.
On February 1, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On April 30, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of race (African-American) when:
1. on December 3, 2012, his request to be excused from overtime work was denied;
2. on January 16, 2013, his request for leave was denied; and
3. on January 17, 2013, his request for a change of schedule was denied.
After the 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 May 9, 2014, the AJ issued a decision by summary judgment in favor of the Agency.
As an initial matter, the AJ dismissed claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The AJ determined that Complainant's initial EEO Counselor contact was on February 1, 2013, which was beyond the 45-day limitation period.
The AJ then addressed claims 2 and 3 on the merits, finding no discrimination. The AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
Dismissal of Claim 1
With respect to the AJ's dismissal of claim 1 for untimely EEO Counselor contact, we note that the alleged discriminatory event occurred on December 3, 2012, but Complainant did not initiate contact with an EEO Counselor until February 1, 2013, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initial contact with an EEO Counselor.
We further note that Complainant, on appeal, did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Specifically, we note that Complainant does not argue that he was not aware of the time limits for contacting an EEO Counselor. Therefore, we conclude that the AJ properly dismissed claim 1 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
Disparate Treatment Claims on Merits
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.
In finding no discrimination concerning claims 2 and 3, the AJ found that the record developed during the investigation established the following undisputed facts. The AJ noted that in regard to claim 2, the record reflects that Complainant requested 3.5 hours of Leave Without Pay from 10:00 a.m. to 1:30 p.m. on January 31, 2013, but his supervisor denied his request. The AJ noted the purpose of the leave request was to allow Complainant, a shop steward, to attend a union meeting.
The AJ noted that according to Complainant's supervisor, she stated that she denied Complainant's leave request because he was needed as scheduled and the requested hours "were not part of work schedule." The supervisor stated that the leave slip that Complainant submitted "was not within his regular work hours. On January 15 Complainant submitted a leave slip for 3.5 hours from 10 AM to 1330 & his regular schedule was from 11:30 AM to 8 PM. Therefore I could not approve the leave because the hours did not match his schedule."
Further, the supervisor stated that the three major holidays requiring employees to work overtime are Thanksgiving (November 26-28, 2012), Christmas (December 23-25, 2012), and New Year's (December 30, 2012-January 1, 2013). Specifically, the supervisor stated "actually the entire month of December, employees available to work overtime are in short supply and we solicit for people off the list to volunteer. Therefore, these are the time frames that is more difficult for management to excuse employees from overtime work."
Regarding claim 3, the supervisor stated that on January 17, 2013, she denied Complainant's request for a change of schedule leave. Specifically, the supervisor stated that on January 16, 2013 Complainant submitted a PS Form 3189 for a Change of Schedule "for 9:30 AM to 1800 and that was denied because there is no schedule at 9:30 AM because there are no runs, therefore no work available for a TTO at 9:30 AM. I annotated the form 'disapproved not within score of work hours.'"
Based on these facts, the AJ concluded that responsible management articulated legitimate, non-discriminatory reasons for the disputed actions that Complainant did not prove were a pretext masking race discrimination.
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 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).
We find that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The AJ correctly found that responsible management officials provided affidavits detailing legitimate, non-discriminatory reasons for denying Complainant's leave and change of schedule requests. Complainant did not present evidence to prove that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race. Therefore, we discern no basis to disturb the AJ's decision.
The Agency's final action implementing the AJ's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 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 (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 (Z0610)
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
October 30, 2014
__________________
Date
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0120142445
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
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