01a53170
08-31-2006
Lonnie L. Maxie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Lonnie L. Maxie,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A53170
Hearing No. 310-2004-00525X
Agency No. 1G-756-0054-03
DECISION
On March 22, 2005, complainant filed an appeal from the agency's February
22, 2005 final action 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final action.
Complainant filed a formal EEO complaint on October 14, 2003, alleging
that he was discriminated against on the bases of race (African-American),
sex (male), disability (gout arthritis), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when he was
terminated due to the violation of the terms of his Settlement Agreement
regarding his Notice of Removal in 2001.
The record reflects that complainant was previously employed by the
agency as a PS-04 Mail Handler at the Dallas, Texas Bulk Mail Center
("facility"). Complainant was terminated by the agency on November 29,
2001 due to continued unsatisfactory attendance. Investigative File
(IF) at Exhibit 2. Complainant filed a grievance and also filed an
EEO complaint regarding his termination. The grievance was resolved
through a Settlement Agreement (SA), in which the removal was reduced
to a suspension and complainant returned to work. The SA stated that
complainant understood that he must maintain satisfactory conduct,
attendance and performance for a minimum of one (1) year or 12 months.
"Satisfactory conduct, attendance and performance will be determined
by the immediate supervisor. If conduct, attendance or performance
is unsatisfactory at any time during the minimum one (1) year period,
[complainant] understands that he will be subject to removal." IF at
Exhibit 3. The SA further stated that if "at any point prior the end of
the one (1) year probationary period, if you accumulate more than three
(3) unscheduled absences during any quarter, the Notice of Removal dated
November 29, 2001 will be effectuated." The record further reflects that
complainant returned to the agency on January 13, 2003, and in June of
2003, complainant met with the facility's Acting Manager of Distribution
Operations (MDO). The MDO discussed complainant's lateness and told him
that his job was in jeopardy. Complainant stated that he told the MDO
that his lateness was due to his arthritis; he was told that he could
bid to another tour or request disability retirement, but decided not to
do either. In July of 2003, complainant submitted an application under
the Family and Medical Leave Act (FMLA), but he was not accepted into
the FMLA program as he had not worked enough hours. IF at Exhibit 4.
The record indicates that complainant notified the agency that he would
not be at work on August 11 and 12, 2003, and stated that his lateness was
due to his arthritic condition1. IF at Affidavit A. When complainant
reported to work on August 13, 2003, he was given a letter stating that
he had violated the terms of the SA. The agency stated that complainant
had 38 instances of unscheduled absences since his return to duty, and
thus the November 29, 2001 Notice of Removal was effectuated. IF at
Exhibit 6. The letter was signed by complainant's first-level Supervisor
(S1; African-Amercian male; arthritis). The record indicates that S1
was aware of complainant's prior EEO activity, and he stated that there
were no other employees under his supervision with attendance problems
similar to those of complainant. IF at Affidavit B.
Believing he was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned formal EEO complaint. At the
conclusion of the investigation, complainant was provided 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 assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over the complainant's
objections, issued a decision without a hearing on January 20, 2005.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
The AJ's Decision initially found that complainant failed to demonstrate
that he is an individual with a disability. In so finding, the AJ noted
that complainant's limitation at the time of his removal was that he
needed to refrain from standing or walking for periods of time when his
condition flared up. The AJ noted that the medical documentation did
not show that complainant had any substantial limitation on any major
life activities, specifically, his ability to walk.
The AJ further found that complainant failed to establish a prima facie
case of sex or race discrimination. In so finding, the AJ noted that
S1 was the same race and sex that he was. Further, the AJ noted that
none of the comparison employees noted by complainant as having similar
attendance problems were supervised by S1. The AJ also noted that there
was no evidence that any of the comparison employees named by complainant
were under a SA which required them to have satisfactory attendance.
The AJ then considered complainant's allegation of retaliation. The AJ
found that although S1 was aware of complainant's prior EEO activity,
a nexus between the termination and the EEO activity did not exist, due
to complainant's poor attendance. The AJ noted that complainant signed
the SA, which required him to be regular in attendance, and also stated
that more than three (3) unscheduled absences in a quarter would lead to
the reinstatement of his removal. The AJ also noted that complainant did
not disagree with the fact that he had 38 unscheduled absences in about
six months since he was reinstated, and complainant was aware in June of
2003 that his job was in jeopardy due to unscheduled absences. The AJ
found that despite the warning from the Acting MDO, complainant continued
his unscheduled absences. As such, the AJ found that complainant failed
to establish that his termination was due to retaliation for prior EEO
activity.
The AJ also found that the agency articulated legitimate,
nondiscriminatory reasons for its actions in terminating complainant, as
stated above. The AJ further found that complainant failed to demonstrate
that the agency's articulated reasons were more likely than not a pretext
for discrimination or retaliation. The AJ noted that complainant alleged
he should have been accommodated with a flexible schedule, but found
there was no medical documentation which stated that he needed to be
accommodated or which excused his absences due to his condition. The AJ
noted that it was unclear how his absences were caused by his medical
condition, and there was no request for accommodation with regard to
complainant's duties. The AJ noted that at the time the SA was signed,
if complainant had any concern regarding his ability to report to work
without excessive unscheduled absences, this was not reflected in the SA.
The AJ further found that given the fact that the SA was followed by
the agency, and that complainant was warned that his attendance problems
could lead to another termination, and he continued to have attendance
problems, there was no evidence to conclude that the agency's actions
in terminating complainant were motivated by discrimination. As such,
the AJ found that complainant failed to establish that he was terminated
by the agency due to discrimination or in retaliation for his prior
EEO activity. The agency's final action agreed with the AJ's finding
of no discrimination.
On appeal, complainant alleged that he was an individual with a disability
and thus the agency was required to provide him with a reasonable
accommodation for his impairment. Complainant further alleged that
he could not be terminated for violating the SA, as S1 approved many
of his leave requests due to his impairment. The agency responded to
complainant's appeal, urging the Commission to affirm the agency's final
action.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
We 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. If a case can only be resolved by weighing
conflicting evidence, a decision without a hearing is not appropriate.
In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that the
issuance of a decision without a hearing was appropriate in this case
because no genuine issue of material fact is in dispute. Upon review, we
concur with the AJ's finding that complainant failed to establish a prima
facie race, sex or disability discrimination.1 The record demonstrates
that there were no similarly situated employees outside complainant's
protected groups who were treated differently under similar circumstances.
We concur with the AJ's finding that even assuming, arguendo, that
complainant established a prima facie case of discrimination on any
basis, the agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, we find that complainant was terminated by
the agency as S1 determined that complainant violated the provisions of
the SA. As found by the AJ, the record indicates that the SA required
complainant to be regular in attendance with no more than three (3)
unscheduled absences in a quarter or the Motion to Dismiss would be
reinstated. However, complainant conceded that he had 38 unscheduled
absences in the six months after his return to work in January of 2003,
which led to his termination. Further, the record indicates that
complainant was warned by the Acting MDO that his job was in jeopardy
due to his unscheduled absences and tardiness. As such, we find that the
record indicates that complainant was terminated due to the violation of
the provisions of the SA. We find that complainant failed to provide
any other evidence from which an inference of race, sex, or disability
discrimination could be established.
We also concur with the AJ's determination that complainant failed
to establish a prima facie case of reprisal discrimination because
complainant failed to establish a nexus between his prior EEO activity
and the reinstatement of the Notice of Removal from which a reprisal
motive may be inferred. Furthermore, complainant has failed to introduce
persuasive evidence sufficient to raise an inference that reprisal more
likely than not motivated the agency officials' actions in this case.
As found by the AJ, complainant's termination was caused by his numerous
unscheduled absences and not by retaliatory animus on the part of S1.
We conclude that complainant failed to present evidence that any of the
agency's actions were motivated by discriminatory or retaliatory animus
towards him. As such, we discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in the decision, the agency's
final action 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
_____8-31-06_____________
Date
1 The record indicates that the medical documentation submitted
with complainant's application for FMLA leave stated that he had
no incapacity due to his arthritis and he could work a regular
schedule, but when his condition flared up he would have to
refrain from standing and walking for long periods at a time.
IF at Exhibit 4.
1 We will assume for purposes of our analysis, without so finding, that
complainant is an individual with a disability. However, we consider
complainant's allegation of disability discrimination under a disparate
treatment analysis only, as there is no evidence in the record that
complainant requested a reasonable accommodation for his arthritis which
was denied by the agency.
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01A53170
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A53170