0120111232
09-20-2012
Brian L Washington, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Brian L Washington,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120111232
Hearing No. 410-2010-00002X
Agency No. 1H-301-0039-09
DECISION
Complainant timely filed an appeal from the Agency's 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented on appeal is whether the decision of the EEOC Administrative Judge (AJ), finding that Complainant did not establish his claim of sex discrimination, is supported by substantial evidence of record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-Time Mail Handler at the Agency's Processing and Distribution Center in Atlanta, Georgia. On May 6, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when, on March 21, 2009, he was placed on Emergency Placement Off-Duty Status. On June 30, 2009, Complainant amended his complaint to allege that the Agency had discriminated against him based on reprisal for prior EEO activity when on April 24, 2009, he received a 7-day Notice of No-Time-Off Suspension, dated April 23, 2009.
On July 13, 2009, the Agency issued Complainant notice acknowledging his amendment. Therein, the Agency dismissed Complainant's suspension claim for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.105(a)(1). The Agency found that Complainant's EEO contact occurred on June 30, 2009, which was beyond the 45-day limitation period.1
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. The AJ held a hearing on August 25, 2010, and issued a decision on November 4, 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.
Specifically, the AJ found that Complainant failed to establish a prima facie case of discrimination based on sex. The AJ noted Complainant that failed to identify a similarly-situated female employee who was treated more favorable than he was. The AJ also found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In particular, the AJ noted that Complainant was put in Emergency Placement Off-Duty Status for being aggressive and refusing to follow orders. The AJ noted that Complainant became angry and aggressive towards the Acting Supervisor because Complainant's work group was asked to report to the facility 30 minutes later than usual. The AJ noted that the Acting Supervisor felt threatened by Complainant's conduct, so she instructed Complainant to report to the Manager of Distribution Operation's (MDO's) office. The AJ noted that Complainant did not report to the MDO's office as instructed. The AJ noted that although a female coworker was not disciplined for complaining about the start time, she was not aggressive and threatening towards management. The AJ found that Complainant failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. The AJ noted that Complainant provided no evidence to establish that his sex was a factor in the Agency's actions.
CONTENTIONS ON APPEAL
Neither party has filed a brief on appeal.
STANDARD OF REVIEW
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 for 29 C.F.R. part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment
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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, because the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks. 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, management explained that Complainant became angry and aggressive towards the Acting Supervisor when Complainant's work group was asked to report to the facility 30 minutes later than usual. Hr'g Tr., at 29-31. Management also explained that Complainant did not report to the MDO's office as instructed. Id.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant contends that a female coworker was not disciplined for complaining about the 30 minute later start time as he was. Notwithstanding Complainant's contentions, Complainant does not dispute management's contention that he became angry and aggressive towards the Acting Supervisor. Like the AJ, we can find no evidence contained in the record that management's actions here were motivated by discriminatory animus based on Complainant's sex.
As such, we find that substantial evidence of record supports the AJ's conclusion that the Agency articulated legitimate, nondiscriminatory reasons its actions, and that Complainant failed to establish that those reasons are pretext for discrimination.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final order because the AJ's decision is supported by substantial evidence.
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 (Nov. 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
September 20, 2012
Date
1 The AJ found that Complainant did not oppose the dismissal of this claim in a timely fashion, and therefore deemed Complainant to have waived review of the dismissal. Complainant has not contested the dismissal or the AJ's determination on appeal. We therefore do not address this matter further.
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0120111232
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111232