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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