0120110447
09-13-2012
Kenneth S. Maeda, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Kenneth S. Maeda,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120110447
Hearing No. 480-2010-00095X
Agency No. 1F-914-0014-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 21, 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Processing and Distribution Center in Santa Clarita, California. Complainant was required to use a cane to walk while working and had restrictions which included no lifting more than 20 pounds and no standing or walking more than 45 minutes per hour. Complainant requested light duty, but on August 2, 2007, Complainant was informed that his request was denied based on a lack of available productive work within his restrictions. On August 28, 2007, the Agency placed Complainant in a paid off-duty status retroactive to August 1, 2007, but ordered him to report to work on August 30, 2007.
On August 30, 2007, the Agency issued Complainant a Notice of Proposed Placement on Enforced Leave. The Notice stated that Complainant's restrictions were so severe that they were unable to provide him productive work at the time. Complainant became an unassigned regular clerk without a bid job and on paid administrative leave.
On May 29, 2008, the District Reasonable Accommodation Committee (DRAC) offered Complainant a bid position as a part-time regular Window Clerk at the Santa Clarita Main Post Office. Complainant was given ten days to accept the position. Complainant rejected the Window Clerk position and instead placed a bid in the Registry Section instead. The position in question was already held by the union president, however, and should not have been posted as vacant. As a result, on July 10, 2008, the DRAC informed Complainant that the bid was rescinded and gave Complainant another five days to accept the previously offered Window Clerk position. Complainant did not respond. On August 14, 2008, the DRAC informed Complainant that since he had rejected the job offer, his administrative leave with pay would terminate and he would be placed in LWOP status. Complainant was allowed to use his accrued leave, however, and Complainant used annual and sick leave from August 2, 2008, until he retired from the Agency effective January 3, 2009.
On June 30, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when:
1. On July 30, 2008, Complainant received a letter dated July 10, 2008, informing him that the Agency had rescinded the Registry Clerk bid (for which he was the senior bidder), yet he subsequently became aware of two female co-workers working in the Registry Section; and
2. On August 2, 2008 Complainant was placed in a Leave without Pay (LWOP) status.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On September 2, 2010, after no response from Complainant, the AJ granted the Agency's motion and issued a decision without a hearing.
In his decision, the AJ initially determined that Complainant had not established a prima facie case of sex discrimination. Specifically, Complainant had not identified any similarly-situated female employees who were treated more favorably. Nonetheless, the AJ assumed arguendo that Complainant had established a prima facie case of discrimination and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Namely, as to claim (1), the Agency rescinded the posting of the Registry Cage clerk position because it had been posted in error. Further, regarding claim (2), Complainant's administrative paid leave was terminated effective August 2, 2008, and he was required to use accrued leave or take leave without pay, because he rejected an offer for a position that was within his medical restrictions. The AJ noted that Complainant did not allege disability as a basis of discrimination, nor did he allege that he had been denied reasonable accommodation in his formal complaint.
The AJ found that Complainant had not presented any evidence establishing that the Agency's reasons were pretextual. As a result, the AJ concluded that Complainant had not been discriminated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that genuine issues of material fact remain. As to claim (1), Complainant argues that that management gave different reasons why the Registry bid was rescinded. Further, Complainant contends that one of the female employees in the Registry Section was junior to him and should not have had priority over him. Accordingly, Complainant requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission must first 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.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and his arguments on appeal do not undermine the AJ's determination that, even assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
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). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
As an initial matter, the Commission notes that Complainant did not allege disability as a basis of discrimination or claim that he was denied reasonable accommodation. Next, assuming for the sake of argument that Complainant established a prima facie case of sex discrimination, the Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), the Distribution Operations Supervisor (S1) affirmed that the Registry Section position was posted in error as it was held by an employee who was temporarily assigned to full-time union president duties. ROI, at 144. Pursuant to the collective bargaining agreement, the position could not be placed up for bidding. When management discovered this, the bid was rescinded. S1 acknowledged that two female employees without bids were working in the Registry Section prior to the bid being rescinded and continued working in the Section after the bid was rescinded. Id. at 144. Both began working in the Registry Section before Complainant started working at the facility.
Regarding claim (2), Complainant was placed on paid administrative leave from August 2007 to August 2008 while the DRAC attempted to find a vacant, funded position within his medical restrictions. ROI, at 162. Complainant was offered a Distribution Window Clerk position; however, he rejected it. Id. As a result, Complainant's paid administrative leave was terminated and he was placed in LWOP status pursuant to the collective bargaining agreement. Id. Complainant used his accrued leave, however, and was not charged LWOP. Id. at 147.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
Construing the evidence in the light most favorable to Complainant, the Commission finds that the record is devoid of any evidence that Complainant's sex was a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. Accordingly, the Commission finds that Complainant has failed to show that he was discriminated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 13, 2012
Date
1 Complainant alleged two additional claims related to receiving a Notice of Proposed Removal and not being permitted to exhaust his leave before being involuntarily retired. The Agency dismissed both claims as untimely. Complainant failed to oppose the dismissal of those claims before the Administrative Judge, and the Administrative Judge upheld their dismissal. Complainant does not raise any challenges regarding the dismissed claims on appeal.
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0120110447
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013