Wade H. Green Jr, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 2, 2006
01a60635 (E.E.O.C. Aug. 2, 2006)

01a60635

08-02-2006

Wade H. Green Jr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Wade H. Green Jr,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A60635

Hearing No. 140-2005-00202X

Agency No. 1C-284-0027-04

DECISION

Complainant filed an appeal from the agency's October 7, 2005 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. For the

following reasons, the Commission AFFIRMS the agency's final order.

At the time of events giving rise to this complaint, complainant worked

as a Mail Processing Clerk at the agency's Processing and Distribution

Center, in Fayetteville, North Carolina. Complainant filed an EEO

complaint on August 20, 2004, alleging that he was discriminated against

on the basis of sex (male) when:

1. On May 21, 2004, complainant was issued a Letter of Warning for

Unsatisfactory Performance;

2. On June 7, 2004, and prior, complainant was not given the opportunity

to work overtime on his nonscheduled day.

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. After both parties submitted motions for a decision

without a hearing, the AJ assigned to the case issued a decision without

a hearing on September 26, 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.

In her decision, the AJ found that complainant failed to identify any

similarly situated employees, who were not male, who received favorable

treatment. With respect to the letter of warning, the record shows

that complainant received the letter of warning for sending eight trays

of mail to be manually processed, which delayed the mail. The AJ noted

that complainant did not identify any other employees who had also sent

trays to the manual section, or who were charged with similar conduct,

who were not also disciplined.

With respect to overtime assignments, the AJ noted that complainant

attempted to compare himself to E1, a female employee, who complainant

alleges is assigned more overtime work and overtime on her non-scheduled

day, than complainant is assigned, despite complainant's name being on

the overtime desired list. The AJ points out that E1 and complainant

are not similarly situated. As the agency noted in its response to

complainant's initial allegations, complainant and E1 do not have the

same seniority date and overtime is assigned according to a collective

bargaining agreement that considers an employee's seniority.

Accordingly, the AJ found that complainant failed to establish a prima

facie case of discrimination based on sex and found that no discrimination

occurred. The agency stated in its decision that it would implement

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.

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, we find that the material facts are not in dispute

and in light of motions filed by the parties, that a decision without a

hearing was appropriate. After a careful review of the record on appeal,

the statements submitted and the AJ's decision, we find the AJ's decision

is amply supported by the record and properly summarizes the material

facts and applicable laws and regulations. We note that complainant

has not shown any connection between his sex and the agency's reasons

for issuing the letter of warning or assigning overtime. We note that

even if the agency erred, as complainant claims, and mistakenly issued

the discipline, complainant has not shown that discrimination was the

real reason he received the letter of warning.

We AFFIRM the agency's decision 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 tends 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

August 2, 2006

__________________

Date

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01A60635

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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01A60635