James E. Villemaire, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.

Equal Employment Opportunity CommissionFeb 28, 2007
0120054578 (E.E.O.C. Feb. 28, 2007)

0120054578

02-28-2007

James E. Villemaire, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.


James E. Villemaire,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Northeast Area),

Agency.

Appeal No. 0120054578

Hearing No. 160-2005-00163X

Agency No. 4B-018-0003-04

DECISION

On June 9, 2005, complainant filed an appeal from the agency's June 1,

2005, final action 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 appeal is deemed timely

and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following

reasons, the Commission AFFIRMS the agency's final action.1

Complainant alleged discrimination on the bases of disability (learning

disability) and in retaliation for prior EEO activity when (1) on

September 29, 2003, he was issued a Letter of Warning (LW) charging him

with failure to satisfactorily perform his duties as a Clerk; (2) since

September 29, 2003 and continuing, he has been required to work numerous

split shifts, some exceeding the 12-hour maximum and other shifts which

extended his work day to the 12-hour limit; and (3) on June 3, 2004,

he was issued a LW charging him with failure to satisfactorily perform

his duties and failure to follow instructions.

The evidence reflected that complainant was employed by the agency as a

Part-time Flexible (PTF) Mail Processing Clerk at the agency's Tewksbury,

Massachusetts Post Office ("facility"). In 2002, at the request of

the previous Tewksbury Postmaster, complainant attended the agency's

training course for Window Clerks. At that time, complainant failed

to complete the 40-hours of classroom instruction, and did not qualify

to take the required written examination. On his second attempt,

complainant completed the 40-hours of classroom training and passed

the written examination. However, after several days of on-the-job

training, complainant failed to complete the necessary 40-hours

of on-site training for Window Clerks and returned to his PTF Mail

Processing Clerk position. On May 14, 2003, complainant entered into

a Settlement Agreement (SA) with the agency. In the SA, it was agreed

that complainant would be given a third opportunity to complete and pass

the window training course and examination. As complainant was the only

PTF Clerk at the facility, the agency needed him to be trained in the

duties of a Window Clerk so he could cover the window when necessary.

On June 23, 2003, complainant informed his supervisor (S1) that he had a

learning disability, and that he needed tutoring and extra attempts to

pass the Window Clerk examination. Complainant subsequently requested

a reasonable accommodation for his learning disability.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). The AJ determined

after consideration of the agency's Motion for a Decision Without

a Hearing that the complaint did not warrant a hearing and over the

complainant's objections, issued a decision without a hearing on May

25, 2005. The agency subsequently issued a final action adopting the

AJ's finding that complainant failed to prove that he was subjected to

discrimination as alleged.

In his decision, the AJ referenced the agency's Motion and found

complainant failed to establish a prima facie case of disability

discrimination. The AJ noted that the record indicated that after

complainant failed to complete the required period of on-site training as

a Window Clerk, he entered into the SA, such that he would be afforded

a third opportunity to complete and pass the Window Clerk examination.

The AJ noted that on June 23, 2003, complainant verbally informed his

supervisor that he had a learning disability, that he needed tutoring and

additional attempts to pass the Window Clerk examination. The supervisor

asked complainant to provide medical documentation in support of his

alleged disability, and complainant failed to do so.

On July 17, 2003, complainant's counsel faxed the supervisor a letter

requesting a reasonable accommodation for complainant due to his learning

disability. The AJ noted that in support of the allegation of disability,

the letter contained a statement from the Director of Special Education

at complainant's high school indicating that he received special needs

services for a learning disability from 1978-1979. The AJ noted that

complainant requested a learning curve which would guarantee he could

work and be effective as an employee, but the claim of disability and

request for accommodation was first made at this time, five (5) years

into his employment with the agency.2

The AJ noted that in opposition to the Agency's Motion, complainant

submitted an evaluation from 1986 indicating that he had significant

learning disabilities, as well as an evaluation from 1988 indicating that

he was performing well below grade level. Complainant also included a

1988 Summary of Psychological Assessment indicating weakness in the area

of verbal concept formation, logical thinking and special organizational

defects. However, the AJ found that viewing the evidence in a light most

favorable to complainant, he failed to establish a prima facie case of

disability, as he failed to show his impairment substantially limited a

major life activity. The AJ found that complainant failed to show that

his learning disability renders him disabled under the Rehabilitation

Act, although he has been provided with ample opportunity to do so. In

addition, the AJ noted that there was no evidence that complainant had a

record of a disability or he was perceived as disabled. In so finding,

the AJ noted that it was significant complainant worked for the agency

for five (5) years and there was no indication during that time that

complainant had a record of disability, he advised the agency of any

disability or that the agency viewed him as a disabled. In addition, the

AJ found that complainant also failed to establish disparate treatment,

as there were no similarly situated employees not in his protected group

who was treated more favorably than he was under the circumstances.

Further, the AJ found that even assuming, arguendo, that complainant

established a prima facie case of disability discrimination, the agency

articulated legitmate, nondiscriminatory reasons for its actions. In so

finding, the AJ noted that the agency articulated legitimate reasons for

insisting that complainant complete window training and for splitting

shifts, as he is a part-time flexible employee with no set schedule and

no days off. The AJ noted that because three (3) full-time employees

retired, the office was short-staffed and complainant was assigned split

shifts as the needs of the service warranted.

The AJ noted that the agency conceded it scheduled complainant for

more than 12-hour shifts on occasion, but stated this was an error as a

new supervisor was unaware that such scheduling was a violation of the

Fair Labor Standards Act. The AJ noted that as soon as the error was

discovered, it was corrected. While the AJ noted that complainant alleged

his assignment violated the agency's Collective Bargaining Agreement

(CBA), she found his complaint of discrimination was the wrong forum to

challenge violations of the CBA, and complainant presented no evidence

to indicate that the assignment was motivated by discriminatory animus

on any basis.

The AJ further found that complainant failed to establish a prima facie

case of retaliation. The AJ found that complainant failed to present

evidence of a causal connection between his prior EEO activity and the

agency's actions, and he failed to successfully rebut the legitimate,

nondiscriminatory reasons for the agency's actions. The AJ noted that

both Letters of Warning were issued due to complainant's failure to

satisfactorily perform the duties of a Clerk, and the split shifts were

assigned due to the needs of the facility. The AJ found that considering

the facts of the case in the light most favorable to complainant, he

failed to successfully rebut the agency's articulated reasons for its

actions. The agency's final action implemented the AJ's decision finding

no discrimination. On appeal, complainant alleges that the AJ erred

when she found that complainant failed to prove that he is an individual

with a disability, as he provided evidence of his learning disability.

Complainant alleged that once complainant told S1 that he had a learning

disability and it was confirmed through the July 17, 2003 letter, the

agency had an affirmative obligation to accommodate him. In addition,

complainant alleged that he was harassed by facility management following

his request for an accommodation. The agency responded to complainant's

appeal, alleging that the AJ correctly found that complainant had not

been discriminated against, and requesting the Commission to affirm the

AJ's decision.

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 EEOC Management Directive 110, 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.

We find that it was appropriate for the AJ to issue a decision without

a hearing on this record. Having reviewed the evidence and drawing all

justifiable inferences in the non-moving party's favor, we find no genuine

issue of material fact. Of course, the parties are in disagreement about

certain facts, but we do not consider these facts to be "material,"

meaning, they are not those which have the potential to affect the

outcome of the case. Furthermore, the AJ did not impermissibly weigh any

conflicting evidence, and she based her decision on a record that was

adequately developed. The AJ also did not rule in favor of the agency

without first ensuring complainant an opportunity to respond to the

agency's Motion. Although we do not normally favor summary decisions

that adopt in whole a party's motion for a decision without hearing,

in this case, we find no harmful error in the AJ's actions.

Addressing complainant's allegation of disability discrimination and

retaliation regarding the agency's Letters of Warning and assignment

of split shifts, we concur with the AJ's finding that complainant

failed to establish disparate treatment based on his disability, as he

failed to proffer evidence of any similarly situated employees not in his

protected groups who were treated differently under similar circumstances.

AJ's Decision at 6. The record does not indicate that there were any

employees who failed to satisfactorily perform their Clerk duties and

were not disciplined. Further, as stated by complainant's supervisor,

both casual and PTF employees were scheduled for split schedules as

the needs of the facility dictated. Agency's Motion at 21. We also

concur with the AJ's finding that the agency articulated legitimate,

nondiscriminatory reason for its actions. The record indicates that the

first Letter of Warning was issued as complainant failed to properly

dispatch three (3) trays of first class mail and five (5) tubs of

small parcels. The second Letter of Warning was issued as complainant

failed to follow the agency's safety policies regarding the handling

of mail, and for being out of uniform. Agency's Motion at 18-21. The

record indicates that complainant was assigned to the split shifts,

as the needs of the facility warranted the split scheduling of its PTF

employees, during the fall of 2003. In addition, the agency conceded

that scheduling complainant for shifts beyond the 12-hour limit permitted

under the CBA was in error and was corrected when discovered by facility

management. As found by the AJ, complainant failed to proffer evidence

which established that the agency's articulated reasons for its actions

were more likely than not a pretext for discrimination.

Complainant also alleged on appeal that the agency failed to accommodate

his alleged disability regarding the on-site portion of the window

training course. Complainant alleged that he has a serious learning

disability which affects his verbal concept formation and logical

thinking, and that he requested an accommodation for his alleged learning

disability when he needed the accommodation to complete training for

the Window Clerk position. Complainant also alleged that he provided

appropriate documentation in support of his learning disability when

he was asked by his supervisor. The accommodation he sought involved

providing him with increased time and tutoring to complete the window

training course.

We find that, assuming, arguendo, complainant established that he is an

individual with a disability, there is no evidence rebutting the agency's

insistence that it did not unlawfully deny his accommodation requests.

Complainant has not shown by a preponderance of evidence that he was

denied a reasonable accommodation involving the completion of the window

training course. The evidence establishes that the agency did accommodate

complainant following his notifying the facility's Postmaster in June of

2003 that he had a learning disability. The record indicates that the

agency renegotiated the terms of the May 2003 SA and provided complainant

with additional training hours to complete the window training. Following

his failure to complete the on-site portion of the training course, the

agency made arrangements for complainant to train on-site at the facility.

The record indicates that complainant successfully completed the window

training course in February of 2004 and is employed at the facility as

a PTF Window Clerk. Investigative Report, at Affidavit A. We remind

complainant that he carries the burden of proving the allegations he

raises by providing sufficient evidence to allow a reasonable fact-finder

to conclude in his favor. He has not met this burden; therefore, we

find that he has failed to show that he was discriminated or retaliated

against with regard to the Letters of Warning and the split shifts,

or that he was denied reasonable accommodation by facility management.

Accordingly, for the reasons stated herein, the Commission AFFIRMS the

agency's final action finding no discrimination.

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

_____2/28/07_____________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

2 The evidence established that complainant also filed a grievance

and obtained additional training hours to help him complete the window

training course, and successfully passed the course in February of 2004.

Complainant continues to work as a Part-time Flexible (PTF) Window Clerk.

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0120054578

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120054578

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