01A22475
08-05-2002
Donald Burton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald Burton v. United States Postal Service
01A22475
08-05-02
.
Donald Burton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22475
Agency No. 1D-272-0035-00
Hearing No. 140-A1-8295X-TRJ
DECISION
INTRODUCTION
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.
BACKGROUND
The record reveals that complainant, a Mailhandler at the agency's
Greensboro, North Carolina Bulk Mail Center, filed a formal EEO complaint
on September 19, 2000, alleging that the agency had discriminated against
him on the bases of race (African-American), sex (male), disability
(Adjustment Disorder and Depressed Mood), and reprisal for prior EEO
activity when by letter dated June 16, 2000, effective July 14, 2000,
he was issued a Notice of Removal for Failure to Report to Work as
Scheduled/Continuous Absence.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision on January 18,
2002, without a hearing, finding no discrimination.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
was scheduled to return to work on February 24, 2000, but did not report
to duty as scheduled; that complainant was informed of his responsibility
to report for duty as scheduled or to support his need for continued
absence with appropriate medical documentation on or about March 28,
2000; that complainant did not report to duty within five days of receipt
of the agency's March 28, 2000, correspondence, as instructed; and that
complainant failed to contact his immediate supervisor or, otherwise,
provide medical documentation which clearly indicated the nature of his
illness or injury and the anticipated duration of his convalescent period,
if any. As a result the AJ concluded that the agency articulated a
legitimate, nondiscriminatory reason for removing the complainant in that
previous efforts to correct his attendance deficiencies were unsuccessful.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ
found that complainant failed to come forth with affirmative evidence
demonstrating that the agency intentionally discriminated or retaliated
against him, as alleged, to create an inference of discriminatory
motivation necessary to establish pretext.
The agency's final order, issued on February 26, 2002, implemented the
AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
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. 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.
A Pre-Conference Hearing was set for October 9, 2001, and following the
Pre-Conference Hearing, on October 15, 2001, the AJ issued a Notice of
Proposed Summary Judgment. In response, the counsel for complainant
submitted an opposition brief on November 9, 2001. The opposition
brief claimed there were material issues of fact that the parties did
not agree on. While there does appear to be a dispute as to whether
the agency received a note from the complainant's psychotherapist that
was faxed on March 15, 2000, this fact is not an issue in dispute that
amounts a to a material fact because subsequent requests for information
from the agency to the complainant about his condition more directly led
to the events in question. As a result, the Commission agrees with the AJ
that after carefully examining the record evidence and the complainant's
opposition brief in a light most favorable to the complainant, summary
judgment was appropriate.
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). He
must generally 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).<1> The prima facie inquiry may
be dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant
must prove, by a preponderance of the evidence, that the agency's
explanation is a pretext for discrimination. 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); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
The agency's articulated legitimate, nondiscriminatory reason for
removing the complainant was that despite warnings and requests for more
information, the complainant failed to show up to work from February
24, 2000, until the Notice of Removal for Failure to Report to Work as
Scheduled/Continuous Absence was issued on June 16, 2000. In particular,
the agency asserted that it issued a letter, dated March 28, 2000, to
the complainant requesting more medical documentation. Specifically,
the agency asked for a more detailed description of his condition and an
analysis from his doctor outlining why he did not believe the complainant
needed to report for duty. This letter instructed the complainant to
show up for work within five days if more information was not provided,
and warned that a notice of removal may be issued if he did not comply
with the letter. The agency asserts that the complainant did not comply,
and only provided more information after the official Notice of Removal
was issued in June of 2000.
The Commission agrees with the AJ that the complainant has failed to
come forth with affirmative evidence demonstrating that the agency
intentionally discriminated against him, as alleged, to create an
inference of discriminatory motivation necessary to establish pretext. On
appeal, complainant points to no new evidence that the agency's decision
to remove him was a pretext to mask discrimination.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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
_____08-05-02__________________
Date
1 For analyzing purposes only, the Commission
assumes that complainant has established coverage under the relevant
statutes and further, that complainant has established a prima facie
case of discrimination on the cited bases of race, sex, reprisal, and
that he is an individual with a disability.