0120100872
07-27-2011
Donte Davis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Donte Davis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120100872
Hearing No. 532-2008-00129X
Agency No. 4C-440-0080-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s November 19, 2009 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Transitional City Carrier at the Agency’s Shaker Heights Branch in
Cleveland, Ohio. On March 14, 2008, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of sex
(male) and in reprisal for prior protected EEO activity when, on February
20, 20081, Complainant was issued a Letter of Separation for Poor Work
Performance.2
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing.3 When Complainant did not object,
the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing and issued a decision on November 13, 2009.
In her decision, the AJ initially found that Complainant had not
established a prima facie case of discrimination on the alleged bases.
Nonetheless, the AJ assumed arguendo that Complainant had established
a prima facie case of discrimination and reprisal and found that
the Agency had articulated legitimate, nondiscriminatory reasons for
issuing Complainant the Letter of Separation. The Agency referred to
10 incidents of Complainant’s poor performance from December 29, 2007
through January 14, 2008. Specifically, Complainant missed two bundles
of mail and had to redeliver it for the same swing he had just finished;
Complainant brought back delivery confirmation parcels that could have
been delivered to the box; Complainant stated that he had scanned parcels,
but when his supervisor (S1) checked, it was found that they had not been
scanned; Complainant mis-delivered an entire street in Shaker Heights;
and, on numerous days Complainant took more than double the time allotted
to deliver his route.
The AJ determined that Complainant provided several reasons for his poor
performance on January 2, 2008, from being chased by dogs to having to
work on the worst snow day of the year and being left without a vehicle
for a period of time. However, the AJ concluded that Complainant failed
to provide explanations for his poor performance on the remaining days
outlined in the Letter of Separation. The AJ concluded that Complainant
had provided no evidence that the Agency’s articulated nondiscriminatory
reasons for his termination were a pretext for discrimination. As a
result, the AJ found that Complainant had not been discriminated against
as alleged. The Agency subsequently issued a final order adopting the
AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he was the victim of unlawful
discrimination and that he was denied the right to work. Complainant
argues that the Agency was aware that he had received notification from
personnel that he would be appointed as a Part-time Carrier prior to
receiving the separation letter. Accordingly, Complainant requests that
the Commission reverse the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ's issuance of a decision without a hearing
was appropriate. The Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in his
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claims 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). He must
generally 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 Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 1997).
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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the Commission finds that the Agency has articulated
legitimate, nondiscriminatory reasons for issuing Complainant the Letter
of Termination. Complainant’s manager (M1) cited 10 incidents of
Complainant’s poor performance beginning on December 29, 2007. ROI,
at 190. Among the identified incidents, M1 stated that on multiple
occasions, Complainant took an excessive amount of time to deliver
mail and, on January 14, 2008, Complainant mis-delivered an entire
street. Id. at 190-95. S1 confirmed that Complainant did not meet the
requirements and standards necessary for the job and constantly ran over
his allotted route time, extending office and street hours. Id. at 203.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Construing the evidence in the light most favorable to
Complainant, the Commission finds that Complainant has not shown that
any of the Agency’s actions were based on discriminatory animus or
that the reasons articulated by the Agency for its actions were mere
pretext to hide unlawful discrimination or reprisal. At all times the
ultimate burden of persuasion remains with Complainant to demonstrate by
a preponderance of the evidence that the Agency’s reasons were not the
real reasons, and that the Agency acted on the basis of discriminatory
animus. Complainant failed to carry this burden. Accordingly, the
Commission finds that Complainant failed to establish that he was
subjected to discrimination or reprisal as alleged.
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 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 (Nov. 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
July 27, 2011
Date
1 The record indicates the Letter of Separation was dated January 15,
2008. Report of Investigation (ROI), at 232.
2 Complainant also alleged that the Agency discriminated against him
on the same bases when: on an unspecified date, he was held back for
routes that his supervisor felt were too dangerous for a female carrier;
(2) on January 2, 2008, management harassed and intimidated him when
they questioned him concerning a lost scanner; (3) on January 2, 2008,
he was left in a high crime area, in the cold, without a vehicle for
30-45 minutes. The Agency dismissed these claims pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim.
3 The AJ ruled, pursuant to the July 24, 2008 Acknowledgement and Order,
that Complainant waived the opportunity to have the Agency’s partial
dismissal of the complaint reviewed by the AJ because Complainant failed
to oppose the dismissal in writing within 30 days of receiving that order.
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0120100872
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100872