01a44277_r
09-17-2004
Leroy Bishop, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leroy Bishop v. United States Postal Service
01A44277
September 17, 2004
.
Leroy Bishop,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44277
Agency No. 4F-950-0173-02
Hearing
No. 370-2004-00186X
DECISION
Complainant, a Distribution Window Clerk, P-05, filed a formal EEO
complaint in which he claimed that the agency discriminated against him on
the bases of his race (African-American), color (black), age (dob 6/4/50),
religion (Apostolic) and in reprisal for his previous EEO activity under
Title VII and the Age Discrimination in Employment Act when on July 20,
2002, he was denied overtime.<1>
The agency accepted for investigation the claim concerning overtime.
The agency investigated the denial of overtime claim and thereafter
referred the matter to an Administrative Judge (AJ), pursuant to
complainant's request for a hearing. Without holding a hearing, the
AJ issued a summary judgment decision finding no discrimination with
regard to complainant not receiving overtime. On April 16, 2004, the
agency issued a final action adopting the AJ's decision.
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.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
See also Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a
showing that age was a determinative factor, in the sense that �but
for� age, complainant would not have been subject to the adverse action
at issue). For complainant to prevail, she 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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
Products, Inc., 530 U.S. 133 (2000).
To establish a prima facie case of age discrimination, a complainant
must show that he was over forty years of age, that he was subjected to
an adverse employment action, and that he was treated less favorably
than other similarly situated employees younger than himself, i.e. he
was accorded treatment different from that given to persons who are
considerably younger than him. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996).
The order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
With respect to complainant not being assigned overtime on July 20,
2002, we shall assume arguendo that complainant set forth a prima facie
case under the alleged bases. The agency stated that complainant had
been scheduled to work overtime on July 19, 2002. According to the
agency, complainant did not work overtime on that day and the Manager,
Customer Service, assigned the next person on the overtime desired list
overtime for July 20, 2002. The Manager, Customer Service, stated that
she was unaware that complainant did not work overtime on July 19, 2002,
and that complainant was not bypassed intentionally. We find that the
agency articulated a legitimate, nondiscriminatory reason for its action.
Complainant claims that he was next in line to work overtime. According
to complainant, on July 19, 2002, he informed the supervisors at his
work facility that if there was overtime on July 20, 2002, he was next
on the overtime desired list. We observe that the agency does not
dispute the fact that complainant was next in line on the overtime
desired list. The agency explained that there was a breakdown in
communication between a Supervisor and the Manager, Customer Service,
and the Manager, Customer Service, thought complainant was working
overtime on July 19 when she assigned another individual overtime for
July 20. We find that complainant has not refuted the agency's position
that he was unintentionally bypassed for overtime on July 20, 2002.
We find that complainant has not established by a preponderance of the
evidence that the agency's stated reason was pretext intended to mask
discriminatory motivation.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
action finding no discrimination.
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
September 17, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Another claim raised by complainant was dismissed by the agency prior
to the hearing. There is no indication that complainant challenged that
dismissal with the Administrative Judge or is challenging the dismissal
of that claim in the instant appeal.