01A14440
03-19-2002
Edward Hernandez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area) Agency.
Edward Hernandez v. United States Postal Service
01A14440
03-19-02
.
Edward Hernandez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area)
Agency.
Appeal No. 01A14440
Agency No. 1-I-680-0003-99
Hearing No. 280-A0-4131X
DECISION
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant claims he
was discriminated against on the bases of national origin (Hispanic),
color (brown), and sex (male) when he was issued a letter of removal,
effective July 3, 1999.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Distribution Clerk at the
agency's General Mail Facility in Topeka, Kansas, filed a formal EEO
complaint with the agency on August 12, 1999, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Complainant subsequently waived his request for a hearing and the AJ
issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination under any of his claimed bases. Specifically, the AJ
found that complainant failed to demonstrate that similarly situated
employees not in his protected classes were treated differently under
similar circumstances. The AJ noted that complainant contended that two
other co-workers, CWs 1 and 2, (both female, white, and non-Hispanic)
who were issued letters of removal, were provided with more progressive
discipline than was complainant. The AJ found that neither CW 1 nor CW 2
were similarly situated with complainant because of numerous differences
including different position-titles, different duties, and different
supervisors, than complainant. The AJ further found that the evidence
concerning whether complainant was in fact treated less favorably than
CW 1 and CW 2 was, at best, inconclusive. The agency's final order
implemented the AJ's decision. From this decision, complainant appeals.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
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 does not sit
as a fact finder. Id. A disputed 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 under Title VII, an AJ may properly consider
summary judgment only upon a determination that the record has been
adequately developed for summary disposition.
In the present case, we note that in correspondence addressed to
complainant, dated November 14, 2000, the AJ states that complainant
agreed to withdraw his request for a hearing, and that both parties agreed
that the AJ should decide the case on the written record. On appeal,
complainant has not disputed this, nor has complainant argued that summary
judgement was improper because material issues of fact were present.
Accordingly, we shall not address the issue of whether or not the AJ
correctly found that there was no genuine issue of material fact in
this case.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the 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.
In order to establish a prima facie case, a complainant may show that
he is a member of a protected class, that he was subjected to adverse
treatment, and that he was treated differently than otherwise similarly
situated employees outside of the protected class. See Potter v. Goodwill
Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). The AJ found
that complainant had not established a prima facie case because he had
not presented evidence that he was similarly situated with the employees
with which he compared himself.
A review of the case file reveals that under the agreement between
the agency and complainant's union, in most instances the discipline
imposed for employee infractions was to be progressive in nature.
The first infraction would result in a discussion, with subsequent
infractions resulting in a letter of warning, followed by one or more
suspensions, and finally, removal. An employee was not subject to removal
without first having received a letter of warning and a suspension.
Certain infractions, however, including absence without leave (AWOL),
resulted in harsher discipline and were not subject to progressive
discipline. On or about May 20, 1999, complainant was issued a �Notice
of Removal�, to be effective July 3, 1999, for alleged �Unacceptable
Performance/Attendance.� The notice was signed by two agency management
officials, RMO 1 (non-Hispanic, white, male) and RMO 2 (non-Hispanic,
black, male). The notice cited eight instances of Emergency Annual Leave,
and eighteen instances of Unscheduled Sick Leave taken by complainant
between November 16, 1998 and May 11, 1999.
During the investigation, RMO 1 averred that the removal was premised
upon a letter of warning, dated November 14, 1997, and two seven-day
suspensions dated March 5, 1998 and July 9, 1998, all for unsatisfactory
attendance. RMO 2 averred that complainant had been AWOL, and therefore
not subject to the progressive discipline requirement. The AJ noted
that complainant presented documentation showing that the first
seven-day suspension was reduced to a working suspension through a
grievance settlement that held that the suspension would be removed from
complainant's file after 18 months, provided he displayed satisfactory
attendance during the 18 months beginning on March 24, 1998. The second
seven-day suspension was also rescinded through a grievance settlement.
The record also reveals that the removal action at issue here was also
reduced through a grievance settlement to a 14-day suspension.
The AJ found that complainant was not similarly situated with the other
employees with whom he compared himself, and complainant disputes
that finding. We note however, that the prima facie inquiry may be
dispensed with in this case since the agency has articulated legitimate
and nondiscriminatory reasons for issuing the letter of removal, namely,
that complainant was not subject to progressive discipline because he
was AWOL. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Roberts v. Department of the Treasury,
EEOC Appeal No. 01981908 (May 15, 2001). The burden thus returns to
the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant essentially contends that, because the removal action was
subsequently rescinded, the agency's reason must therefore have been mere
pretext for discrimination. The AJ noted, however, that, while RMO 1
and 2 may have been mistaken in their reasons for issuing the removal
letter, �there is no evidence of discriminatory intent on the part of
either official.� We further note that, to infer discrimination, it is
not sufficient �to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination.� Hicks, 509
U.S. at 519. Furthermore, while complainant may not in fact have been
AWOL on those occasions RMO 2 believed him to have been, the record
nevertheless clearly demonstrates that complainant had substantial
problems with attendance during the period in question. The AJ further
noted that both officials denied discriminating against complainant based
on his protected group status. Complainant has provided no evidence other
than his bare attestations to support his allegations of discrimination.
We therefore find complainant failed to meet his burden of showing,
by a preponderance of the evidence, that the agency's legitimate,
nondiscriminatory reasons were pretext for discrimination. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
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
_____03-19-02_____________
Date