0120090619
01-12-2012
Tommy J. Sersaw, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Tommy J. Sersaw,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120090619
Hearing No. 480-2007-00531X
Agency No. 4F920003507
DECISION
On November 17, 2008, Complainant filed an appeal from the Agency’s
October 7, 2008, 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. and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
The Commission deems the appeal timely and accepts it pursuant to 29
C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a mail processing clerk at the Agency’s Yucaipa Post Office facility
in Yucaipa, CA.
On March 3, 2007, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (Caucasian), sex
(male), color (White), and disability1 (back) , and reprisal (prior EEO
activity) when:
1. his work hours were changed and he was removed from his modified
job assignment;
2. on December 14 and 15, 2006, he was required to provide documentation
for calling in sick;
3. on January 11, 2007, he was issued a letter of demand to return the
vending machine keys and return the pass codes to the safe;
4. on April 2, 2007, he was denied overtime;
5. his request to return to a 5:00 a.m. start and duties have been denied;
6. he was ordered to present updated medical documentation;
7. a named 204B supervisor manipulated his seniority standing on the
clerk schedule; and
8. a named 204B supervisor did not allow Complainant to perform the
duties of his position and assigned them to another carrier.
At the conclusion of the investigation, the Agency provided Complainant
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. Over the complainant's objections, the AJ
assigned to the case granted the Agency’s December 7, 2007, motion for
a decision without a hearing and issued a decision without a hearing
on September 30, 2008. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.
The AJ in this mater found that Complainant failed to establish a
prima facie case of discrimination on any alleged basis. Specifically,
the AJ found that Complainant did not identify any similarly situated
individual, not in Complainant’s protected classes who was treated
more favorably under similar circumstances. The AJ further found that
the Agency articulated legitimate, nondiscriminatory reasons for its
actions which Complainant failed to show were pretext.
With respect to Complainant’s claim that his work hours were changed
and he was removed from his modified job assignment, the record indicates
that in 1994, Complainant was offered and accepted a rehabilitation
position with the Agency that started at 10:30 a.m. The record
further indicates that at some point after 1994, Complainant’s
start time was changed to 7:00 a.m. Neither party has presented any
evidence regarding why Complainant’s start time was changed from 10:30
a.m. to 7:00 a.m. According to Complainant he had been placed on several
different medical restrictions throughout his employment with the Agency.
However, the record indicates that at the time of the relevant events,
Complainant was under a 50 pound intermittent weight lifting restriction.
The Agency indicates that Complainant was not considered substantially
limited because the weight restriction did not limit his job duties.
The record further indicates that Complainant’s previous supervisor
had asked Complainant to come in two hours early at 5:00 a.m. to work
overtime. The record indicates that Complainant’s current supervisor
came to the Agency in 2006. In an attempt to reduce overtime costs
as mandated by Agency officials, Complainant’s supervisor returned
Complainant to his 7:00 a.m. start time. The record indicates that
this reduction in overtime was applied to all employees. Complainant
alleges on appeal, that the Agency did not save any money as a result
of denying him the opportunity to work overtime. Other than his bare
assertion, Complainant offers no evidence to support his contention.
According to the Agency, overtime was approved on an as needed basis.
Concerning claim 2, the record indicates that Complainant was required to
provide medical documentation for calling in sick on December 14 and 15
2006 in accordance with Agency policy which applies to all employees.
On January 11, 2007, while Complainant was at home on sick leave,
he received a letter demanding that he return the keys to the Agency
vending machine and the pass codes to the safe. Complainant claims
that the Agency’s conduct was discriminatory in claim 3 of the instant
complaint. The record indicates that Complainant was on indefinite sick
leave from December 10, 2006 to April 2, 2007. Prior to his departure,
he was instructed to return the keys to the vending machine and vending
pass code so that another employee could keep the machine stocked for
postal customers during his absence. On appeal, Complainant alleges
that the Agency’s conduct in requesting that he provide medical
documentation and requiring that he return the vending machine keys,
amounted to retaliatory harassment as a result of his prior EEO activity.
With respect to claims 4 and 5, the record indicates that Complainant’s
requests for overtime were denied as a result of Agency-wide efforts
to reduce the cost of overtime. Complainant’s request to resume his
5:00 a.m. work day was similarly denied in an effort to save costs.
Regarding Complainant’s claim that he was required to provide updated
medical documentation, the Agency indicates that Agency policy provides
that medical documentation for a rehabilitation employee can be requested
on an annual basis. The Agency further indicates that Complainant’s
seniority with the Agency has remained unchanged for nine years, well
before Complainant became under the supervisory authority of the current
204B supervisor. The record indicates that Complainant has not lost any
seniority as a result of his change in work hours and loss of overtime.
The record indicates that Complainant has maintained his number two
position on the seniority list. Regarding Complainant’s claim that
his duties have been given to another employee, the Agency indicates
that because of the Agency’s short staffing, other employees were
called upon to perform duties not assigned to any particular employee.
The record indicates that from time to time, Complainant performed the
duties of sweeping the lobby and answering phones. However, according
to the Agency those duties are not regularly assigned to one employee
and are performed by any clerk deemed available to perform the task on
an as needed basis.
ANALYSIS AND FINDINGS
We must 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, issuing a decision
without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the
instant complaint was suitable for summary judgment. The record is
adequately developed and there are no disputes of material fact.
Here, we agree with the AJ’s finding of no discrimination. Generally,
claims of disparate treatment 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, 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). For instance, to establish a
prima facie case of reprisal, Complainant generally must show that:
(1) she engaged in protected EEO activity; (2) the Agency was aware of
the protected activity; (3) subsequently, she was subjected to adverse
treatment by the Agency; and (4) a nexus exists between his protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to
establish a prima facie case of discrimination, on any alleged basis we
find further that the Agency articulated legitimate, nondiscriminatory
reasons for its conduct as alleged in this matter and Complainant failed
to show that those reasons are pretext for discrimination. Complainant
failed to establish that the Agency's actions were based on discriminatory
motives. Based on a thorough review of the record, we AFFIRM the final
agency action finding no discrimination.
CONCLUSION
Summary judgment was appropriate in this case because no genuine
issue of material fact is in dispute. Complainant failed to
present evidence that any of the Agency's actions were motivated by
discriminatory animus towards him. We discern no basis to disturb the
AJ's decision. Accordingly, after a careful review of the record, the
Agency's final order is AFFIRMED.
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 (November 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
January 12, 2012
__________________
Date
1 For purposes of this analysis, we assume without finding that
Complainant was a qualified individual with a disability.
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0120090619
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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