0120114086
02-17-2012
Michael W. Redice, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Michael W. Redice,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120114086
Hearing No. 430201000143X
Agency No. 4K280015709
DECISION
On August 29, 2011, Complainant filed an appeal from the Agency’s
September 26, 2011, 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., 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. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Carrier Technician at the Agency’s Freedom Station in Charlotte,
North Carolina.
On November 2, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
sex (male), disability,1 and age (54) when in July and July 2009,
Complainant’s requests for a detail to a Specialist position in the
Agency’s Address Management System (AMS) department were denied.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing and the AJ held a hearing on July 18, 2011,
and issued a decision on August 23, 2011.
The record further indicates that the AJ in this matter denied
Complainant’s request to amend his complaint to include an allegation
concerning a violation of the Equal Pay Act. Complainant alleged that
he was performing the duties of the AMS Specialist and should have been
paid the same as other AMS Specialists, most of whom were female. The AJ
denied Complainant’s motion to amend because he failed to mention the
additional allegation prior to the day of the hearing. The AJ further
found that it would be unfair to the Agency if Complainant were permitted
to amend his complaint at the hearing stage.
The AJ went on to find that the evidence established that although
Complainant was employed by the Agency as a Carrier Technician,
Complainant had been working in a limited duty assignment in the
Agency’s AMS department as a result of an on-the-job injury that
rendered him unable to deliver mail. The record further establishes
that Complainant cannot work at night, and must work close to home.
Complainant’s restrictions also limited the about of weight he
was permitted to lift. In the modified AMS position, Complainant was
tasked with editing books, filing, answering phones and assisting the
AMS Specialists in the performance of their jobs. According to the AJ,
the evidence showed that Complainant’s responsibilities in the modified
AMS position were clerical and administrative in nature.
In July 2009, following a department-wide telephone conference
call regarding a detail to work as an AMS Specialist in Ashville,
North Carolina, Complainant advised his supervisor that he wanted to
be detailed to the Ashville, North Carolina AMS Specialist position.
Complainant’s supervisor denied Complainant’s request because he
was a craft employee who had not previously worked as an AMS Specialist.
Therefore, he would need to be trained to assume the detail position and
the Agency preferred someone for the detail who was already experienced
in the position.
The evidence further indicates that, during this time period, the new
District Manager expressed concerns to the AMS supervisor, who was also
Complainant’s supervisor, regarding employee staffing in the AMS.
According to the record, Complainant’s supervisor had been detailing
craft employees to fill vacant AMS Specialist positions. The District
Manager’s concern was that because craft employees could only be
detailed for 120 days, once they were properly trained on how to do
their jobs, the detail would end. The District Manager recommended that
the supervisor begin using lower level EAS employees or Postmasters,
rather than craft employees, to detail into the AMS Specialist positions
because they could be detailed indefinitely. The District Manager also
directed the supervisor that she could detail craft employees if she had
a short time need, but those craft employees had to have previously been
detailed to an AMS Specialist position so that they would not require
training regarding the duties of the AMS Specialist position before
they could begin performing in a capacity that would be beneficial to
the Agency’s needs in that division.
Based on this evidence, the AJ found that Agency management articulated
legitimate, nondiscriminatory reasons for denying Complainant’s request
for a detail as an AMS Specialist because he was a craft employee limited
to 120-day details, who did not have previous training in the position and
would require training. The AJ further found that Complainant did not
prove this proffered explanation was a pretext for discrimination. The
Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness
or on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (November
9, 1999).
As an initial matter, we find that the AJ's decision not to accept
Complainant's proposed amendment to his complaint should not be
reversed. In accordance with 29 C.F.R. § 1614.109, administrative judges
have discretion over matters pertaining to the development of a record
and the conduct of a hearing. Additionally, the Commission has held
that it is within the AJ's discretion to permit or deny an amendment to
a complaint. See Sewell v. Environmental Protection Agency, EEOC Appeal
No. 01A50262 (April 8, 2005). Complainant has not established an abuse
of that discretion in this case.
To prevail in a disparate treatment claim absent direct evidence of
discrimination, Complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Complainant carries the initial burden
of establishing a prima facie case by demonstrating that he or she was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. 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 802
n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to prove, by a preponderance
of the evidence, that the reason proffered by the Agency was a pretext for
discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519
(1993).
The Commission agrees with the AJ that the Agency’s management
witnesses articulated legitimate, nondiscriminatory reasons for the
disputed decision. Complainant has not shown that the Agency's articulated
reasons were a pretext for discrimination. In reaching this conclusion,
we note that the Agency indicated that Complainant was not selected to
serve a detail as an AMS Specialist because he was a craft employee
who had not previously been detailed to the Agency’s AMS division.
In addition, the record indicates that in Complainant’s modified
AMS position, his duties were administrative and clerical in nature.
Therefore, he did not possess the prior knowledge of the AMS Specialist
position that would enable him to immediately perform the duties of the
AMS position during the period of a 120-day detail.
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 preferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we find that Complainant failed to establish
pretext. We find no evidence that the Agency's actions were motivated
by discriminatory animus toward Complainant’s protected classes.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM
the Agency’s final order adopting the AJ’s determination that no
discrimination was established in this case.
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 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 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
February 17, 2012
__________________
Date
1 For purposes of analysis, the Commission assumes without finding that
Complainant is an individual with a disability. 29 C.F.R. § 1630.2
(g)(i.).
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0120114086
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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