0120103725
03-04-2011
Terry E. Clark, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Terry E. Clark,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120103725
Hearing No. 510-2010-00001X
Agency No. 4H335006109
DECISION
Complainant filed an appeal from the Agency's August 23, 2010, 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. 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 Regular Rural Carrier at the Agency's Riverview postal facility in
Riverview, Florida. On June 10, 2009, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of race
(African-American), sex (male), color (Black), and age (55) when, on
March 29, 2009, the Agency placed him in Emergency No-Pay Status; and on
April 2, 2009, issued him a notice of removal for improper conduct.
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. Over the Complainant's objections, the AJ
assigned to the case granted the Agency's January 30, 2010 motion for a
decision without a hearing, and issued a decision on the record on July
30, 2010. 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.
In her decision, the AJ found that Complainant's facility was scheduled
to undergo a national Rural Mail Count (count). The count was an
annual nationwide Agency event, and was scheduled for February 14 -
March 10, 2009. Prior to the count, the Agency instructed carriers
to empty their mailboxes and process all change of address (COA) or
"moved left no forwarding address" (MLNA) actions in their possession.
The carriers were specifically instructed not to hold the processing of
these actions until after the count began. Carriers are given credits
for the delivery of mail, and certain types warrant greater or lesser
credit. COA are credited with a time factor of 2 minutes, and by filing
60 COAs during the count, Complainant artificially increased the amount
of time it would take him to complete his route. As a result, his actions
could have earned him an additional $700 a year.
After the count, the Agency conducted a study of all COA submissions
during the count. All employees were affected by the study. It was
found that all carriers processed the same number of COAs except
Complainant. The Agency investigated the matter and determined that
Complainant tried to manipulate his numbers to enhance his income. Thus,
the Agency placed him in no-pay status and subsequently removed him from
employment.
The AJ found that Complainant failed to establish a prima facie case
of discrimination. The AJ noted that Complainant failed to name any
similarly situated carriers who committed a similar offense and received
more favorable treatment. Further, the AJ also noted that Complainant
admitted to submitting COAs and to processing duplicative and expired
submissions. As such, the AJ found that Complainant did not show that
the Agency's reasons for removing him were a pretext for discrimination.
In his appeal, Complainant basically complains about the actions of
management, stating that they did not properly carry out the terms of
discipline procedures, and that management should have instructed him
as to the proper procedures regarding MLNA.
ANALYSIS AND FINDINGS
We must 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.
Applying these principles, we conclude that Complainant has failed to
identify any genuine issues of material fact that required resolution
through hearing. Therefore, we affirm the AJ's decision to decide the
case on the investigative record without a hearing.
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). 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 v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
After a review of the record, the Commission finds that Complainant
has failed to show beyond a preponderance of the evidence that the
Agency's reasons for removing him were a pretext for discrimination.
Complainant admitted to manipulating the COAs. He has not shown that
anyone else committed similar acts and was not disciplined. Moreover,
he has not produced any other evidence to suggest that the disciplinary
actions taken against him were motivated by discriminatory animus.
As such, he has not proven his claims of discrimination.
The Agency's final action 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 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
March 4, 2011
__________________
Date
2
0120103725
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103725