Tommy J. Sersaw, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionJan 12, 2012
0120090619 (E.E.O.C. Jan. 12, 2012)

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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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