0120063391
09-21-2007
Harold Black, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Harold Black,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200633911
Hearing No. 550-2006-00012X
Agency No. 4F-940-0130-05
DECISION
Complainant filed an appeal with this Commission from the April 21,
2006 agency decision which implemented the April 10, 2006 decision of
the EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against him on the
bases of race (Asian/Filipino), national origin (Asian/Filipino), sex
(male), and in reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964, when on July 22, 2005, complainant
was terminated from the position of a part-time flexible (PTF) Sales,
Service Distribution Associate.
After investigation, complainant requested a hearing before an AJ.
Over the objection of complainant, the AJ issued a decision without a
hearing (summary judgment). The AJ concluded that complainant failed to
establish a prima facie case of race or national origin discrimination,
noting that the comparatives were not similarly situated to complainant.
The AJ also concluded that complainant failed to establish a prima facie
case of reprisal, noting that complainant offered no evidence whatsoever
that he was terminated due to prior EEO activity. The AJ concluded
further that even assuming that complainant had established a prima facie
case of race and national origin discrimination and reprisal, the agency
had articulated legitimate, nondiscriminatory reasons for its action.
The AJ also concluded that complainant offered no material or relevant
evidence that the agency's reason for the termination was pretextual.
The AJ stated that the undisputed evidence of record was that the union
and the agency entered into a settlement agreement wherein a letter
of termination, dated May 9, 2005, was to be removed and rescinded
from complainant's personnel records; that the settlement agreement
required that complainant be reassigned from the Bolinas Post Office
to the Petaluma Post Office; that the reassignment to the Petaluma
Post Office would carry a new probationary period from June 11, 2005
through September 8, 2005; and that complainant was required to pass
all training requirements of the job for which he was being hired.
The AJ concluded that even if the settlement agreement was named a Last
Chance Agreement or identified by any other name, the undisputed fact
was that complainant's continued employment was based on his passing all
training requirements of the job and that complainant failed to pass the
window clerk examination. The AJ also concluded that there was not a
"scintilla of evidence" that the San Francisco District personnel and the
Bolinas Postmaster conspired in informing agency personnel in Petaluma
of complainant's prior EEO activity or that there was any conspiracy
regarding abnormalities in the administration of the testing.
To establish a prima facie case of race, sex, or national origin
discrimination, a complainant must show the following: (1) complainant was
a member of the protected class; (2) an adverse action was taken against
complainant; (3) a causal relationship existed between complainant's
membership in the protected class and the adverse action; and (4)
other employees outside of complainant's protected class were treated
differently.
Complainant can establish a prima facie case of reprisal by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (December 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Complainant may establish a prima facie case
of reprisal by showing that: (1) complainant engaged in a protected
activity; (2) the agency was aware of the protected activity; (3)
subsequently, complainant was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
To prevail in a disparate treatment claim, complainant must satisfy
the Mc Donnell Douglas three-part evidentiary scheme. Complainant must
generally establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances which
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Although the initial inquiry
in a discrimination case usually focuses on whether complainant has
established a prima facie case, the prima facie inquiry may be dispensed
with when the agency has articulated a legitimate, nondiscriminatory
reason for its actions. In such cases, the inquiry shifts from whether
complainant has established a prima facie case and proceeds to the
ultimate issue of whether complainant has shown by a preponderance of
the evidence that the agency's actions were motivated by discrimination.
See United States 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).
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
An AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. � 1614.109(g) is reviewed de novo. The Commission is free to
accept, if accurate or reject, if erroneous, the 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.
The record contains the affidavit of the now retired Petaluma Postmaster
(P-1) who stated that he terminated complainant because he failed the
examination. There is no evidence that similarly situated employees of
different protective categories were treated differently.
The record reveals that complainant had engaged in prior EEO activity
at the Bolinas Post Office regarding a May 2005 termination. The record
contains a document entitled "Settlement Agreement Form" (SAF) which was
signed on June 10, 2005, by a Management Official (MO) for management
and on June 9, 2005 by a Mediator. The signature lines for complainant
and his representative contain no signatures. The SAF contained the
following terms: that complainant's letter of termination of May 9,
2005 was rescinded and removed from complainant's personnel and Labor
Relations records; that the MO would discuss having complainant reinstated
at the first opportunity with the Manager of Personnel Services; that
complainant would not reapply for work at the Bolinas Post Office; that
the MO was to communicate with complainant's representative as to her
findings no later than June 16, 2005; and that the issue of back wages
was not resolved and remained open.
Also contained in the record is a Notification of Personnel Action
(Form 50) for complainant with an effective date of June 11, 2005,
which reflects that complainant was being reassigned from the Bolinas
Post Office to the Petaluma Post Office. The Form 50 reflects that
the position was that of a PTF Sales, Service Distribution Associate.
The Form 50 also identifies the SAF, noting that complainant was to
be reassigned to Petaluma with a new probationary period from June 11,
2005 through September 8, 2005, and that he was required to pass all
training requirements of the job to which he was being hired/reassigned.
The record contains a July 13, 2005 Memorandum to the Postmaster from
the Acting Manager of Training to the Petaluma Postmaster, which reveals
that complainant had participated in the Sales and Services Associate
Training Program and was found ineligible, having taken the examination
on July 13, 2005. The record contains a termination letter, dated
July 20, 2005, from P-1. Therein, P-I informed complainant that he was
terminated effective July 22, 2005, because he failed to qualify on the
Window Service examination and that the Window Service qualification
was a requirement of his 90-day probationary period. The record also
contains an earlier termination letter, dated July 15, 2005, notifying
complainant of his termination and service as a PTF Window Clerk, with
an effective date of termination of July 22, 2005.
In her affidavit, a Human Resources Specialist who was Acting Manager of
Training from January 2005 to October 2005, stated that the examination
taken by complainant was by computer and that examination scores were
automatically generated at the conclusion of the examination. She also
stated that it was not possible for her, the trainer, or other local
personnel to manipulate the computerized test results.
The Commission finds that the grant of summary judgment was proper because
no genuine issues of material fact exist. The Commission finds further
that the agency terminated complainant because he failed the examination
and, accordingly, his termination was not based on his race, sex, national
origin, or reprisal. The Commission finds that the evidence shows that
P-1 relied on the Form 50 to determine that complainant had to pass the
examination in order to remain employed. Construing the evidence in
the light most favorable to complainant, the Commission concludes that
complainant failed to show by a preponderance of the evidence that the
agency's reason for his termination was pretextual and that the agency
was motivated by discriminatory animus. The agency's decision finding
no discrimination 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 21, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120063391
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036