0120130694
05-24-2013
Hugh M. Lynch, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Hugh M. Lynch,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120130694
Hearing No. 532-2012-00035X
Agency No. 1C441004009
DECISION
On November 29, 2012, Complainant filed an appeal from the Agency's October 31, 2012, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a mail processing clerk at the Agency's facility in Cleveland, Ohio.
The record indicates that Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), disability1 (hearing impaired, carpel tunnel, neck, shoulder, arm and back pain, and sight impaired), and reprisal for prior protected EEO activity when:
1. On April 6, 9 and 14, 2009, he had to ask for permission to use the restroom;
2. On April 6, 9 and 14, 2009, he was talked down to in the presence of other clerks; and
3. On April 18 and 19, 2009, his supervisor instructed Complainant to hit the 340 key on the time clock and go home.
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. When the Complainant did not object, the AJ assigned to the case granted the Agency's April 25, 2012, motion for a decision without a hearing and issued a decision without a hearing on September 19, 2012. 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.
The record in this matter indicates that Complainant is employed with the Agency as a full time limited duty mail processing clerk with permanent physical impairments. Complainant's impairments are related to his hearing and his eyesight. Complainant wears glasses and sometimes has difficulty reading mail. Complainant's other impairments, including carpel tunnel, neck, shoulder and arm pain as well as his elbow pain substantially limits his ability to grasp, wash dishes, walk, see, hear, and write.
Complainant contends that on April 6, 9 and 14, 2009, as he left the workroom floor, his supervisor yelled out to him and asked Complainant where he was going. Complainant responded that he was going to the restroom. According to Complainant's supervisor, employees, including Complainant are required to notify management when they leave the unit for any reason for accountability reasons. The Agency contends that Complainant was never required to request permission to use the restroom, but was expected to inform his supervisor that he was leaving the workroom floor.
Complainant alleges that also on April 6, 9 and 14, 2009, his supervisor talked down to him in the presence of other clerks when he said "you aint worth a shit. Why did you leave mail on the ledge?" Complainant alleges that his supervisor also chastised Complainant for continuing to file EEO complaints against him saying that the Union would not "do anything for [him]." Other than Complainant's bare assertion, there is no evidence of record that Complainant was prohibited from contacting the Union regarding his concerns. In fact, the record discloses that Complainant has used the Agency's negotiated grievance procedure in the past which resulted in a settlement between the parties.
On April 18 and 19, Complainant's supervisor instructed him to hit the 340 key on the time clock and leave for the day because his work was not acceptable. The record indicates that because of the Agency's recent advances in automated technology, there was not a sufficient volume of mail to require the number of limited duty employees working during the April 18, 19 2009 timeframe. The Agency indicates that on more than one occasion, an entire unit of employees, both limited duty and non-limited duty and other employees outside of Complainant's protected classes were moved over to the 340 standby time clock code due to lack of available work.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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 Constr. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
The AJ in this matter determined that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for the disputed action, namely that all employees were required to notify Agency management when leaving the work room floor for any reason, that there was no evidence of animus toward Complainant's protected classes assuming that Complainant was talked down to, and that all employees were instructed to hit the 340 key on occasion due to lack of work. The AJ further found that Complainant's statement alone regarding his supervisor's remarks about filing grievances and EEO claims is insufficient to avoid summary judgment in this matter.
Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. Upon review, we find that Complainant failed to prove, by a preponderance of the evidence, pretext on any alleged basis. We find no evidence that the Agency's actions were motivated by discriminatory animus.
To the extent that Complainant alleges the Agency's conduct constituted discriminatory harassment, the Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
The AJ in this matter determined that Complainant failed to demonstrate that any of the Agency's alleged conduct was sufficiently severe or pervasive to rise to the level of actionable harassment. After a review of the record, even accepting Complainant's allegations as true, we conclude that Complainant did not prove that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment and that he also failed to prove that the Agency's actions were unlawfully motivated by his protected classes. Accordingly, Complainant has not shown that he was subjected to a discriminatory hostile work environment.
We also find that there is no evidence of record to create a genuine dispute of material fact that a nexus exists between the alleged incidents, comments, or actions of the Agency and Complainant having engaged in protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that summary judgment was appropriate in this case because no genuine issue of material fact is in dispute. Complainant failed to present evidence that any of the Agency's actions were motivated by discriminatory animus towards him. We discern no basis to disturb the AJ's decision. Accordingly, after a careful review of the record, the Agency's final order is AFFIRMED.
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
May 24, 2013
__________________
Date
1 For purposes of analysis, the Commission assumes without finding, that Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g) (i).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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