01a60778
04-19-2006
Austin P. Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Austin P. Washington v. United States Postal Service
01A60778
April 19, 2006
.
Austin P. Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60778
Agency No. 4G-770-0448-04
Hearing No. 330-2005-00132X
DECISION
Complainant filed an appeal with this Commission from an October 5, 2005
agency decision implementing the decision of the EEOC Administrative Judge
(AJ) finding no discrimination and the agency's dismissal of two claims.
Complainant, a City Carrier, alleged that the agency discriminated against
him on the basis of sex (male) when: (1) on July 23, 2004, while in the
swing room, the Supervisor of Customer Service ordered him to return to
his "case," and did not direct another carrier, a female, (Employee A)
to return to her case; (2) on August 27, 2004, Employee A was in the swing
room preparing breakfast and was not instructed to return to her case; and
(3) on August 19, 2004, he was forced to work on his non-scheduled day.
On December 1, 2004, the agency issued a Partial Acceptance/Partial
Dismissal of the instant Complaint. Therein, the agency dismissed claims
1 and 2 of the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim. In dismissing the two claims, the agency stated
that complainant had failed to show that he had suffered a personal loss
or harm with respect to a term, condition, or privilege of his employment
as a result of the agency's alleged actions. The agency also dismissed
claim 1 pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to contact an
EEO Counselor in a timely manner and stated that complainant failed to
provide evidence to extend the time limitation period. The agency stated
that complainant was aware of the time limitation period having filed
prior complaints and that he contacted an EEO Counselor on September 11,
2004, which was beyond the 45-day time limitation period.
Complainant was informed by the agency in its dismissal that because
claims 1 and 2 were dismissed, the claims would not be investigated
and that he could submit a statement providing his objection, if any,
to the dismissal to the agency investigator and that he could raise his
objection to the dismissal with the EEOC AJ should he request a hearing
on the complaint.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing (summary judgment).
In her decision finding no discrimination, the AJ concluded that
complainant failed to establish a prima facie case of sex discrimination.
In so concluding, the AJ noted that complainant was a member of the
protected group of males and that he had worked on his non-scheduled
day. The AJ further stated that complainant had failed to identify
any city carriers who were not on the overtime desired list and had no
restrictions who were not required to work overtime on August 19, 2004.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated employees not in complainant's protected class who
could work without restriction were treated differently. The AJ noted
that the two females (Employee A and Employee B) that complainant had
identified as being treated differently were not similarly situated
because both worked on August 19, 2004.
The AJ further concluded that even assuming that complainant had
established a prima facie case of sex discrimination, the agency
had articulated a legitimate, nondiscriminatory reason for requiring
complainant to work overtime on his non-scheduled day. The AJ stated
that complainant was required to work because of staffing reasons,
noting that 18 carriers were off and that all available employees,
whether on the overtime desired list or not, were scheduled to work and
that complainant and three other employees not on the overtime desired
list were required to work. The AJ also noted that complainant was
required to work in accordance with the union bargaining agreement.
The AJ also concluded that complainant did not provide evidence that
the agency's reason was pretextual and that discrimination was the real
reason for the agency's action in requiring him to work. In this regard,
the AJ stated that although complainant argued that the agency did not
follow the rotation for junior employees when requiring forced overtime,
complainant did not dispute that he was forced to work overtime based
on staffing needs.
Regarding the dismissal of claim 1 and 2,the Commission finds that
they fail to state a claim because the claims do not affect a term,
condition or privilege of his employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). In addition, claim 1 is also untimely.
Specifically, concerning claim 1, the Counselor's Report reflects that
complainant was in the swing room completing a union grievance and
the Supervisor of Customer Service instructed complainant to return
to his case because his union time was up. Claim 1 therefore would
be more properly pursued under the collective bargaining agreement.
The Commission has long held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another forum's proceedings.
See Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 24, 1993). Moreover, claim 1 is also untimely.
We find that the alleged discriminatory event occurred on July 24,
2004, and that complainant did not initiate EEO Counselor contact
until September 11, 2004. Accordingly, his contact was untimely and
complainant has not provided adequate justification to extend the time
period. The Commission finds that complainant was aware of the 45-day
deadline because the record reflects that he had previously filed EEO
complaints. Although complainant alleges that he initiated contact
prior to September 11, 2004, complainant does not identify the date
when he did so. Further, the record does not show that the agency
required that a specific form be used to initiate the EEO process.
In addition, complainant has not shown any bad faith on the part of the
agency regarding his allegations concerning when the forms were provided.
Regarding claim 2, complainant has not demonstrated how he was harmed
because Employee A was preparing breakfast in the swing room. He has
not shown that he was not allowed to prepare breakfast in the swing
room or to use the swing room while Employee A was able to do so.
Complainant alleged only that the Supervisor of Customer Service came
into the swing room to get breakfast after Employee A had fixed it and
did not instruct Employee A to report to her case.
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.
Complainant may establish a prima facie case of sex discrimination by
showing that: (1) complainant was a member of the protected class; (2) an
adverse action was taken against complainant; (3) a causal relationship
existed between complainant's membership in the protected class and
the adverse action; and (4) other employees outside of complainant's
protected class were treated differently.
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. 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, complainant 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). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000).
Regarding claim 3, complainant is alleging that female employees were
not forced to work overtime on August 19, 2004. The record contains
agency work records regarding employees who worked on August 19, 2004,
employees who were on the overtime desired list, employees who were on
restriction and leave, and a non-scheduled employee listing. The agency
work records disclose that complainant was not scheduled to work on August
19, 2004, and that he was not on the overtime desired list. The agency
work records for non-scheduled day employees reflect that complainant
and three other employees, all males, were required to work. Four other
employees on the non-scheduled day work listing were on restriction.
The record reflects that the two females complainant identified as being
treated differently were on the overtime desired list and worked on
August 19, 2004. The affidavits of management officials also reflect
that 18 letter carriers were off and complainant was forced to work
overtime for staffing reasons.
The Commission finds that the agency has articulated a legitimate,
nondiscriminatory reason for its action in requiring complainant to
work, i.e., to provide adequate staffing. Construing the evidence to
be most favorable to complainant, complainant has not shown that the
agency's explanation for requiring complainant to work was mere pretext
to hide unlawful discrimination and that its action was motivated by
discriminatory animus.
To the extent that complainant may be asserting that the agency did not
follow provisions in the union contract in determining who should be
required to work, the Commission lacks authority to decide claims related
to union activities that are not linked to claims of discrimination.
Also, to the extent that complainant is alleging that he was subjected
to harassment, the Commission determines that the alleged discriminatory
events were not so severe or pervasive so as to create a hostile work
environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23
(1993).
As a final matter, the Commission notes that complainant asserts on
appeal that the AJ dismissed without addressing a retaliation claim he
raised before the AJ. Specifically, complainant alleged that he had a
second complaint of retaliation in which he alleged that he was harassed
during the settlement conference and that the AJ was made aware of the
retaliation claim on the date the AJ issued her decision. We have held
that settlement negotiations, including any statements or proposals,
are to be treated as confidential and privileged to facilitate a candid
exchange to settle disputes informally. Harris v. Department of the Navy,
EEOC Request No. 05941002 (March 23, 1995).
Accordingly, the agency's decision dismissing claims 1 and 2 and finding
no discrimination regarding claim 3 is AFFIRMED.
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
April 19, 2006
__________________
Date