0120072505
08-16-2007
Patrick Salisbury, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patrick Salisbury,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072505
Agency No. 4J604008405
Hearing No. 440200600012X
DECISION
On May 3, 2007, complainant filed an appeal from the agency's April 2,
2007, final order concerning his equal employment opportunity (EEO)
complaint claiming 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 deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
On May 2, 2005, complainant filed an EEO complaint alleging discrimination
based on reprisal for prior protected EEO activity and religion (Catholic)
when, with regard to events in March 2005, (a) based on reprisal, on
March 14, he was removed from window operations and replaced by a PTF who
did not hold a bid position as a window clerk;1 (b) based on reprisal,
on March 18, a senior window clerk was selected to train a new employee;
(c) based on reprisal, on March 26 and 28, he was directed to move from
window to window, even though one window was not in use; and (d) based
on reprisal and religion, on March 26, his starting time for Saturday
was changed from early morning to 10:30 a.m. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
Over the complainant's objections, the AJ assigned to the case granted
the agency's July 31, 2006 motion for a summary judgment and issued a
decision without a hearing on March 8, 2007. 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.
At the time of events giving rise to this complaint, complainant worked
at the agency's Joliet Main facility in Joliet, IL. Complainant began
his service with the agency in June 1995, and, in November 2003, he was
the successful bidder on a new position, Mail Processor/Window Clerk
(position). The duties of the position required complainant to serve as
relief for window operations in the morning and for the registry cage in
the afternoon while the employees assigned to those locations took their
breaks. With regard to issue (b), the agency explained that the window
clerk selected as the trainer (T1) received higher pay for the period of
training and that the collective bargaining agreement required selection
of the most senior employee, and T1 was more senior than complainant.
As to issue (c), the agency explained that the duties of the position
required complainant to act as relief for each window clerk when s/he
took a break, and complainant's supervisor (S1) directed complainant to
occupy the station of the window clerk on break.2 Finally, in response
to issue (d), the agency stated that it changed his Saturday start time
in order to assign an experienced worker to close out the registry cage
and that the agency was unaware of complainant's religious practice of
attending mass on Saturday evening.
The AJ considered complainant's claims and found that complainant did not
establish a prima facie case for any of his three claims. As to (b),
he questioned whether complainant was subjected to an adverse action
when T1, who was more senior, was selected to train the new employee.
With regard to (c), again the AJ found that complainant did not show that
he was disadvantaged by occupying the window of the employee on break and,
thus, failed to show the required causal connection; also, the AJ observed
that this practice had been in place since the inception of the position.
As to the schedule change for Saturdays, the AJ held that complainant did
not establish that he was entitled to a religious accommodation, nor did
he demonstrate that the agency's action was taken in reprisal. Finally,
the AJ found that complainant's request for sanctions was not consistent
with the facts, since he had denied his Motion to compel in June 2006.
On appeal, complainant repeated many of his arguments made in his
opposition to the agency's motion for a summary decision. Complainant
stated his disagreement with S1's insistence that he replace the window
clerk on break at his/her window, stating it was based on discrimination
and not the operational needs of the agency, and he compared himself to
the regular window clerks, even though he occupied a different position
with different duties. He also averred that the agency ignored the
pattern aspects of his complainant, referring to C-04, and contended
that the agency fragmented his complaint. He also made references
to possible additional violations based on sex and harassment/hostile
work environment.3 Complainant also contended that the AJ improperly
granted summary judgment, since material facts remained in dispute,
in that, the AJ did not examine the agency's reasons for its actions.
Complainant also repeated his demands for the deposition of a distant
manager and access to S1's personnel file, both of which were denied
by the AJ during discovery. He also argued that his change of schedule
for Saturdays was in retaliation for filing his formal complaint in C04.
Standard of Review and Summary Judgment
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision
without a hearing on this record. The Commission's regulations allow
an AJ to issue a decision without a hearing when s/he finds that there
are no genuine issues of material fact. 29 C.F.R. � 1614.109(g).
This regulation is patterned after the summary judgment procedure in
the Federal Rules of Civil Procedure, Rule 56, and 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). The AJ may
properly issue 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. 0120024206 (July 11,
2003). For the reasons set out below, the Commission determines that
the grant of summary judgment was appropriate, as no genuine dispute of
material fact existed, that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies and
laws; and that, construing the evidence in a light most favorable to the
complainant, we agree with the AJ's determination that the record does
not support a finding that complainant was subjected to discrimination
based on reprisal or religion.
Disparate Treatment
Generally, claims of disparate treatment, such as complainant's, are
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For complainant to
prevail, s/he 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).
Once complainant has established a prima facie case, 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). If the agency is successful, the burden
reverts back to the complainant to demonstrate by a preponderance of
the evidence that the agency's reason(s) for its action was a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal Claim
Specifically, for analysis of claims claiming disparate treatment
based on reprisal, we follow the three-part scheme of McDonnell
Douglas Corporation v. Green, supra. Complainant can establish a
prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (December
6, 1996). In a reprisal claim, and in accordance with the burdens set
forth in McDonnell Douglas, supra, to establish a prima facie case of
reprisal, s/he must show: (1) s/he engaged in a prior protected activity;
(2) the official acting on behalf of the agency was aware of the protected
activity; (3) s/he was subjected to adverse treatment by the agency; and
(4) a nexus, or causal connection, exists between the protected activity
and the adverse treatment.4 Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000.
Initially, we find, as did the AJ, that complainant failed to establish
a prima facie case based on reprisal, in that, complainant did not
show the required causal connection between his prior EEO activity and
the action at issue in this complaint. In C-04, complainant contacted
an EEO counselor on August 18, 2004, and filed his formal complaint on
October 13, 2004, and the events cited occurred in March 2005, more than
five months previous. Further, even assuming he established a prima
facie case based on retaliation, he has not shown, through preponderant
evidence, that the agency's reasons for its actions were pretext.
Specifically, as to (b), initially, complainant has not shown that he
was subjected to an adverse action, since he did not establish that he
had a right to be the trainer. Even assuming that he made the necessary
showing, the agency stated that it selected the senior employee, and
complainant did not demonstrate that he was the senior employee and
entitled to train the new employee. With regard to (c), the agency
stated that it was the practice since December 2003, for complainant
to attend the workstation of the employee on break, and complainant's
job duties are not the same as the window clerks. And, as to (d), the
agency assigned complainant to close the registry cage, because he had
more experience than others, and complainant did not demonstrate that the
agency's reason was not its true reason. Complainant contended that the
agency took the actions complained of to discriminate against him but did
not present probative evidence in support. His mere speculation, without
more, is not sufficient to demonstrate pretext or prove discrimination.
Religion Claim
Under Title VII, it is an unlawful employment practice to discriminate
against employees and prospective employees based on religion,
and employers are required to accommodate the religious practices
of employees, absent proof that the accommodation would impose an
undue hardship on the employer. See 42 U.S.C. � 2000e(j); 29 C.F.R. �
1605.2(b)(1). In order to establish a prima facie case of discrimination,
the complainant must show that (1) s/he has a bona fide religious
belief that conflicts with an employment requirement; (2) s/he informed
the agency of this religious belief; and (3) s/he was disciplined for
failure to comply with the conflicting employment requirement or otherwise
adversely affected. Turpen v. Missouri-Kansas-Texas Railroad Co., 736
F.2d 1022, 1026 (5th Cir. 1984); Reilly v. United States Postal Service,
EEOC Appeal No. 01941810 (November 17, 1994); Partridge v. USPS, EEOC
Appeal No. 01943980 (April 11, 1996).
With regard to (d), we find that complainant did not establish a prima
facie case based on religion, since he did not inform the agency of a
religious belief that conflicted with the requirement to attend work.
In fact, even assuming he had done so; his attendance at Saturday evening
mass was his preference and not a religious obligation. We find that
the agency did not interfere with his religious practices or affect
performance of his religious obligation when he was assigned to a later
shift on Saturdays.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the
agency did not discriminate against complainant as alleged. Accordingly,
the agency's decision 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
___8-16-07_______________
Date
1 The AJ dismissed this issue as res judicata, since complainant raised
the same matter in an earlier complaint, No. 4J604015004 (C-04); an
AJ's decision found no discrimination (Hearing No. 210200500237x), and
it was affirmed on appeal to the Commission. EEOC Appeal No. 0120060024
(March 1, 2007), request to reconsider den., EEOC Request No. 0520070417
(June 6, 2007). We find that issue (a) was properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(1).
2 The agency noted that complainant's position was not a window clerk
position, and his ongoing effort to identify himself as a window clerk
is incorrect.
3 To the extent that complainant desires to raise new claims, the
Commission has held that it is not appropriate for a complainant to raise
new claims for the first time on appeal. See Hubbard v. Department of
Homeland Security, EEOC Appeal No. 01A40449 (April 22, 2004). Should he
wish to pursue these claims, complainant is advised to contact an EEO
counselor to begin the administrative process.
4 To demonstrate nexus based on temporal proximity, the period of time
separating the events must be very close. See Clark County School
District v. Breeden, 532 U.S. 268 (2001) (to establish sufficient
evidence of causality, the time period between the employer's initial
knowledge of the prior protected activity and the adverse employment
action must be "very close;" a three month time period was not proximate
enough to establish a causal nexus); EEOC Compliance Manual, Section 8,
Retaliation, pp. 8-18 (to support a finding of unlawful retaliation,
there must be proof that the acting agency official(s) took the action
at issue because of complainant's prior protected activity and sought
to deter complainant or others).
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0120072505
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072505