01A40905_r
09-27-2004
Carl A. Gagnon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carl A. Gagnon v. United States Postal Service
01A40905
September 27, 2004
.
Carl A. Gagnon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40905
Agency No. 1B-061-0010-98
Hearing No. 160-A2-8128X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that complainant, during the period at issue was a
Flexible Mail Handler at the agency's Bradley Air Mail Facility (AMF)
in Windsor Locks, Connecticut, and stopped working on August 26, 1997.
The record further reflects that on September 16, 1997, complainant
submitted a form CA-2, �Notice of Occupational Disease,� claiming
that he developed increasingly painful tension headaches, insomnia,
stomach pain, and a lack of concentration on the job due to treatment
from his supervisor.
By letter dated October 7, 1997, complainant's psychologist informed
the agency that complainant could return to work on a full time basis
without restrictions. Complainant's psychologist further stated that
complainant preferred to work on the midnight shift with a different
supervisor while maintaining his same employment locations, though
acknowledging that complainant stated that no positions are available
on this shift. Complainant's psychologist then suggested that a second
preference would be to return to his current supervisor on the same shift,
but that complainant stated that various management and union efforts were
unsuccessful in �remediating the factors generating stress.� Finally,
complainant's psychologist stated that complainant felt it best to accept
a transfer to another facility, such as in Hartford, Connecticut.
On October 13, 1997, complainant's psychologist provided an addendum.
Therein, he stated that complainant can return to work on a full-time
basis with no physical restrictions. However, complainant is advised
not to return to work on the current shift with his current supervisor.
Complainant's psychologist stated that such a return would exacerbate
complainant's stress level and result in symptom escalation and
complainant's renewed absence from the work site. Complainant remained
out of work until on or about October 15, 1997.
On November 28, 1997, complainant filed the instant EEO complaint.
Therein, complainant claimed that he was the victim of unlawful
employment discrimination on the bases of race (Caucasian), national
origin (American), disability (one arm and stress disorder),<1> and in
reprisal for prior protected activity when upon his return to work on
October 15, 1997, his work hours were reduced to four hours per night,
six days a week.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability, finding that complainant did not establish that he was
substantially limited in one or more major life activities.
The AJ then assumed arguendo that complainant established a prima facie
case of either disability discrimination or disparate treatment based
on his race, religion, or national origin, and found that the agency
nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. The AJ concluded that complainant failed to show the agency's
articulated reasons were a pretext for disability discrimination and
disparate treatment. As to complainant's reprisal claim, the AJ found
that complainant failed to establish an inference of discrimination
because he failed to establish a causal connection between his
prior EEO activity and the action at issue. In that regard, the AJ
concluded although complainant had a prior EEO activity, most recently
in October 1997, the AJ found that the Plant Manager denied knowledge
of complainant's prior protected activity and that complainant offered
no evidence to challenge the Plant Manager's denial. The AJ also found
that there is no evidence that the Supervisor was aware of complainant's
prior protected activity but that it may be assumed that he did because
complainant stated that his complaint was against him.<2>
Regarding the articulated reason that the agency provided for its actions,
the record contains the Plant Manager's affidavit. Therein, the Plant
Manager stated that it was based on her recollection and a review of
documents from the Manager, Injury Compensation that a determination
was made that complainant could return to work in October 1997, on a
full time basis without restrictions. The Plant Manager further stated
that after the determination was sent to complainant's physician, the
physician submitted an addendum. Therein, the physician stated that
complainant can return to work as long as there is no contact between
him and a named Supervisor due to "employment stress related disability."
The Plant Manager stated that based on the information from complainant's
physician, complainant's reporting time was changed from 1:00 a.m. to
3:00 a.m. in an effort to avoid any contact between complainant and
hie supervisor. Furthermore, the Plant Manager stated that during the
relevant time period complainant was a Part Time Flexible employee and
contractually was not guaranteed more than four hours per day.<3>
The agency's final action implemented 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 when a court determined 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 the justifiable inference 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. Catreet, 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,
the issuance of a decision without a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly consider
issuing a decision without a hearing only upon a determination that the
record has been adequately developed for summary deposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the AJ properly found that the agency
identified a legitimate, non -discriminatory reason for its actions.
Specifically, the AJ determined that complainant's reporting time was
changed to keep him away from the supervisor that prompted complainant's
departure from work in August 1997. Moreover, the AJ noted that
complainant was not contractually guaranteed to work more than four hours
per day and that complainant's not having additional hours was based on
mail volume and operational needs. The Commission further determines
that complainant has not established that the agency's reasons for its
actions were a pretext for discrimination.
The Commission determines that the issuance of a decision without a
hearing was appropriate, as no genuine dispute of material fact exists.
Further, construing the evidence to be most favorable to complainant, we
find that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes.
Accordingly, the agency's final action implementing the AJ's finding of
no discrimination was proper and 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
September 27, 2004
__________________
Date
1We assume without finding for the purposes
of analysis only, that complainant is an individual with a disability.
2The Commission notes that the AJ did not address whether complainant
established a prima facie case of discrimination on the bases of race
and national origin. Because we determine that the agency articulated
a legitimate, non-discriminatory reason for its actions, as more fully
discussed below, we find it unnecessary to address these issues further.
3The record reveals that complainant's Part-Time Flexible status was
changed to a Full-Time Flexible status effective February 13, 1999.