0120101984
12-10-2010
Albert B. Long, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Albert B. Long, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120101984
Hearing No. 430200800345X
Agency No. 4K270002408
DECISION
On April 13, 2010, Complainant filed an appeal from the Agency's March
19, 2010, 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. 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.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) properly issued a decision
without a hearing.
2. Whether the AJ properly found that Complainant was not subjected to
unlawful discrimination based on race and sex.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a part-time flexible (PTF) Clerk, Sales, Service and Distribution
Associate, Level 5, at the Agency's Post Office in Henderson, North
Carolina. Complainant was reassigned to the Henderson Post Office in March
2007. Since Complainant's reassignment, he received a May 25, 2007 letter
of warning, a seven day suspension issued on July 2, 2007, and a 14 day
suspension issued on July 31, 2007, for failure to follow instructions
and to report to work as scheduled. On November 7, 2007, Complainant's
supervisors (S1) and (S2) issued Complainant a Notice of Removal for the
following reasons: 1) he was charged with being absence with out leave
(AWOL) from October 4, 2007 to October 6, 2007; 2) he failed to bring in
proper medical documentation to support his absences during this period;
3) on October 10, 2007, he failed to ship seven priority packages; and
(4) he had received prior disciplinary actions.
Further, Complainant from September 1, 2007, to November 9, 2008,
was assigned to work an average of 29.62 hours per week. In comparison,
another PTF Clerk (C1) (Causasion Female)1 was to assigned work an average
of 30.94 hours per week. Also, PTF Clerks at the Henderson Post Office
were required to work swing shifts on different occasions. In this regard,
a swing shift required a PTF Clerk to work a certain number of required
hours in the morning and return to the Henderson Post Office to work hours
in the afternoon or evening. Between September 3, 2007, and November
8, 2007, Complainant worked a total of 24 swing shifts, while C1 worked
only two swing shifts. Also, another PTF Clerk (African-American female)
worked 27 swing shifts during the same time period. There were a total
of seven PTF Clerks at the Henderson Post Office.2 Three PTF Clerks had
been schemed trained before Complainant's arrival to the Henderson Post
Office.3 Three newly hired PTF Clerks were window and schemed trained due
to their 90 day probationary status. Complainant was the only PTF Clerk
at the Henderson Post Office that had not received scheme training. As
a result, Complainant could not sort mail.
On January 10, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of race (black) and sex
(male).
1. on September 20, 2007, to the present he has been denied equity in
scheduling and training; and
2. on November 8, 2007, he was issued a Notice of Removal effective
December 8, 2007.
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 February 20, 2009 motion for
a decision without a hearing and issued a decision without a hearing on
March 10, 2010. 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.
Specifically, the AJ found that Complainant failed to establish a prima
facie case of discrimination based on race and sex. In this regard,
the AJ noted that Complainant failed to show that he was treated less
favorably than any similarly situated employee outside of his protected
classes. Also, the AJ found assuming arguendo that Complainant established
a prima facie case of discrimination based on race and sex, the Agency
articulated legitimate nondiscriminatory reasons for its actions. In
this regard, the AJ noted that the Agency actions were based on business
needs. Specifically, in regards to claim (1), the AJ found that all new
PTF Clerks were required to receive window and scheme training since
they were probationary employees. The AJ noted that Complainant was
an 18 year veteran employee who already received this training.4 The
AJ further noted that since Complainant was a PTF Clerk, the Agency was
not required to guarantee him any certain number of hours.
In regards to claim (2), the AJ also found that the Agency articulated
legitimate nondiscriminatory reasons for its actions. Specifically,
that Complainant was issued the November 8, 2007, notice of removal
for failure to follow instructions, unacceptable performance, and being
absent without leave (AWOL). In this regard, the AJ noted that Complainant
called in sick from October 4, 2007 to October 6, 2007, but failed to
provide supportive medical documentation to the Agency. The AJ further
noted that a clerk found seven pieces of priority mail that Complainant
had failed to ship while working as the Evening Dispatch Clerk. The AJ
found that Complainant failed to present any evidence of pretext or that
the Agency's actions were motivated by discriminatory animus.
CONTENTIONS ON APPEAL
On appeal, in regards to claim (1) Complainant contended that he
was denied equity in scheduling in comparison to other employees
in regards to swing shifts. Complainant also contended that the AJ
failed to consider the affidavits of other employees regarding the
inequity of scheduling. Complainant further contended that he never
received scheme training in his 18 years with the Agency. In this regard,
Complainant contended that the AJ erred in noting that he had been schemed
trained. Complainant also contended that all clerks at the Henderson Post
Office had an opportunity to receive scheme training except for him.
Regarding claim (2), Complainant contended that he was not asked to supply
medical documentation for his absence from October 4 to October 6, 2007
until October 9, 2007. Complainant contended that it was unreasonable for
the Agency to request medical documentation three days later. Complainant
also contended that he never mailed the seven priority packages because
they were placed in an inappropriate location by building maintenance
personnel. Complainant also contended that C1 and C2 committed similar
offenses but received no disciplinary action.
ANALYSIS AND FINDINGS
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
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
After a review of the record, the Commission finds that the AJ's
issuance of a decision without a hearing was appropriate. The record
has been adequately developed, Complainant was given notice of the
Agency's motion to issue a decision without a hearing, he was given
an opportunity to respond to the motion, he was given a comprehensive
statement of undisputed facts, and he had the opportunity to engage in
discovery. In addition, the Commission finds that, even assuming all
facts in favor of Complainant, a reasonable fact-finder could not find
in Complainant's favor, as explained below. Therefore, no genuine issues
of material fact exist. Under these circumstances, we find that the AJ's
issuance of a decision without a hearing was appropriate.
Claim (1)
To prevail in a disparate treatment claim, 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 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).
To establish a prima facie case of disparate treatment on the bases of
race or sex, Complainant must show that (1) he was a member of a protected
class; (2) he was subjected to an adverse employment action concerning
a term, condition, or privilege of employment; and (3) he was treated
differently than similarly situated employees outside his protected
class, or there is some other evidentiary link between membership in the
protected class and the adverse employment action. McCreary v. Department
of Defense, EEOC Appeal No. 0120070257 (April 14, 2008); Saenz v. Navy,
EEOC Request No. 05950927 (January 9, 1998); Trejo v. Social Security
Administration, EEOC Appeal No. 0120093260 (October 22, 2009).
It is well-established that in order for comparative evidence relating to
other employees to be considered relevant, all relevant aspects of the
employees' work situation must be identical or nearly identical, i.e.,
that the employees report to the same supervisor, perform the same job
function, and work during the same time periods. See Anderson v. Dep't of
Treasury, EEOC Appeal No. 01A22092 (March 13, 2003); Stewart v. Dep't of
Defense, EEOC Appeal No. 01A02890 (June 27, 2001); Jones v. U.S.' Postal
Serv., EEOC Appeal No. 01983491 (April 13, 2000).
Upon review, we find that Complainant has failed to establish a
prima facie case of race and sex discrimination. In this regard,
we find that Complainant cannot establish that he was treated
differently than similarly situated employees outside of his protected
classes. Specifically, in regards to scheme training, the record reflects
that three PTF Clerks were already scheme trained before Complainant was
reassigned to the Henderson Post Office. Further, the record reflects that
the remaining three PTF Clerks were new 90 day probationary employees. In
this regard, these new employees were required to pass scheme training
as part of their probationary periods. As such, in regards to scheme
training, no PTF Clerks were identical or nearly identical in all
employment aspects to Complainant. In this regard, although Complainant
may not have been scheme trained specifically for the Henderson Post
Office, Complainant was an 18 year veteran employee who had been trained
to work the retail window, dispatch mail, as well as other duties.
Also, we note that although Complainant asserts that the AJ erred
in noting that he had been given scheme training, we find that, even
if true, this is not material because there is no evidence that the
Agency's denial of scheme training was based on discriminatory animus
towards Complainant's race or sex. In this regard, we find that this
error is not material to the overall finding that Complainant failed
to establish that a genuine issue of material fact existed such that a
hearing is warranted.
Further, in regards to Complainant being scheduled to work more swing
shifts, Complainant indentifies C1 as a comparator. However, the record
reflects that C1 had approved Family Medical Leave Act (FMLA) absences
in the afternoon two times a week to take care of the medical needs of
her daughter. As a result, C1 could not return to work on those days to
work in the afternoon. Further, C1, along with other PTF Clerks, were
scheme trained while Complainant was not. The record reflects that scheme
trained employees worked different schedules based on the needs of the
office. Therefore, C1 and other PTF Clerks were not similarly situated
to Complainant in regards to being assigned to work swing shifts. Thus,
Complainant cannot establish a prima facie case based on race and sex
in regards to claim (1).
Claim (2)
We find that Complainant has established a prima facie case of race and
sex discrimination with respect to claim (2). Complainant is a male
African-American, was issued a notice of removal, and has identified
similarly-situated employees outside of his protected classes that were
treated differently. Specifically, Complainant has identified C1, a
Caucasian female PTF Clerk, who was not issued a notice of removal. Also,
Complainant has identified other female employees who were not issued
notice of removals. Accordingly, we find that Complainant has established
a prima facie case of race and sex discrimination in regards to claim
(2).
However, in response, the Agency has articulated legitimate
nondiscriminatory reasons for its actions. In particular, the Agency
noted that Complainant was issued the Notice of Removal because he failed
to bring in proper medical documentation to support his absences from
October 4, 2007 to October 6, 2007, and failed to ship seven pieces of
priority mail while working as the Evening Dispatch Clerk. Moreover, the
Agency noted that Complainant had received prior disciplinary actions for
failing to follow instructions and report to work as scheduled. In this
regard, the Agency noted that on one occasion Complainant had failed to
dispatch 27 pieces of mail.
In regards to pretext, we note that Complainant contended that C1 and C2
committed similar offenses but received no disciplinary action. However,
contrary to Complainant's contention, the record establishes that both C1
and C2 received disciplinary actions from management. The record reflects
that C1 was given a Letter of Warning on one occasion for failing to
dispatch an express piece of mail. The record also reflects that C2,
on February 12, 2007, was issued a Notice of Removal for failure to
follow instructions and unacceptable conduct. Upon review, we find
that Complainant failed to provide any evidence of pretext in the
record. Furthermore, we find that the record is devoid of any evidence
that the Agency's actions were motivated by discriminatory animus towards
Complainant's race or sex.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that unlawful discrimination occurred.
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
December 10, 2010
Date
1 C1 was the only Caucasian PTF Clerk at the Henderson Post Office. C1 had
Family Medical Leave Act (FMLA) protected sick leave for two afternoons
each week to medically assist her daughter.
2 Five PTF Clerks were African-American females and one PTF Clerk was
Caucasian female. As such, Complainant was the only African-American male
PTF Clerk at the Henderson Post Office during this time frame. C2, another
female employee, was issued a Notice of Removal on February 12 2007.
3 The record reflects that distribution scheme training enables an
employee to sort mail based on the scheme of delivery established by
each office branch. As such, since Complainant was not trained for
the Henderson's post office's scheme, he did not have the requisite
knowledge to sort mail within that post office. As a result, the record
reflects that Complainant's tasks only included dumping mail, boxing mail,
working the window, and passing presorted mail to carriers.
4 There is nothing in the record to indicate that Complainant was ever
scheme trained.
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0120101984
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101984