01a01639
10-16-2002
Jesus Sandico, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jesus Sandico v. United States Postal Service
01A01639
October 18, 2002
.
Jesus Sandico,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01639
Agency No. 4-F-940-0176-97
Hearing No. 370-98-X2752
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
ISSUES PRESENTED
The issues presented herein are whether the agency properly dismissed a
portion of complainant's complaint for failure to contact an EEO counselor
in a timely manner; and whether complainant has proven by preponderant
evidence that he was discriminated against on the bases of sex (male),
national origin (Filipino), age (forty-five), disability (depression,
anxiety disorder, and skin allergy) when he was not paid for a day of
sick leave on May 23, 1997, and was assigned Window Clerk duties on June
9, 1997.
BACKGROUND
The record reveals that complainant, a Window Technician at the agency's
San Francisco Airport Mail facility, filed a formal EEO complaint dated
September 18, 1997, in which he alleged what has been identified as
the issues presented. Complainant further alleged discrimination on
the same bases as above when he was denied out of schedule pay in April
1997, denied the opportunity to work at a stamp show in May 1997, and
denied T-6 training on an unspecified date. The complaint was accepted
for investigation. At the conclusion of the investigation, complainant
exercised his right to have a hearing before an EEOC Administrative
Judge (AJ). Consequently, his case was forwarded to the appropriate
EEOC District Office and assigned to an AJ. After examining the file
and determining that there were no genuine issues of material fact or
questions of credibility, the AJ, without a hearing, issued a decision
dismissing complainant's denial of out of schedule pay, stamp show,
and T-6 training allegations as untimely and issued a finding of no
discrimination with regard to the rest of his allegations. The agency
adopted the AJ's findings. Complainant appealed.
ANALYSIS
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. 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.
After examining the testimonies of the various witnesses and other
evidence provided by the parties, we find that the AJ's decision to
issue a ruling without a hearing was appropriate.
Dismissed Allegations
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
As previously noted, two of the dismissed allegations occurred in April
and May of 1997. But complainant did not contact an EEO counselor
regarding these allegations until July 17, 1997, at least two days
beyond the forty-five day limitations period. Moreover, he did not
offer sufficient justification for an extension of the time limits.
As for the third dismissed allegation, complainant failed to provide a
specific date when pressed by the AJ to do so. Consequently, the AJ
drew an adverse inference and presumed that had complainant provided
a specific date, this allegation would have been untimely. The AJ's
findings regarding all three allegations were proper. Therefore, the
agency's adoption of the AJ's dismissals was appropriate.
Allegations Addressed on the Merits
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). In this case, we find that the agency has stated legitimate,
nondiscriminatory reasons for its actions.
Regarding complainant's denial of sick leave pay, the agency stated
that complainant called in on May 23, 1997 and reported that he would
be late due to a medical appointment. Notwithstanding this call,
complainant failed to report to work at all, so the agency marked him
absent without leave pending documentation. Because May 23 was the
last day of the pay period and complainant did not work at all during
the following week (he was on scheduled annual leave), the documentation
was not provided until June 3, 1997. Upon receiving the documentation,
the agency submitted a pay adjustment which was reflected in complainant's
pay check for the pay period ending July 4, 1997. The agency stated that
complainant's technician duties were replaced with clerk duties because
of the disruptive, hostile, and inappropriate behavior he exhibited
toward his supervisor and co-workers.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). Complainant
offered no evidence tending to prove that the agency's stated reasons for
its actions were pretext designed to mask discriminatory animus toward
his protected groups. Consequently, his claim of discrimination fails.
CONCLUSION
After a careful review of the entire record, we find that the AJ's
decision properly summarized the relevant facts. Further, construing the
evidence to be most favorable to complainant, we note that complainant
failed to present evidence that any of the agency's actions were
motivated by discriminatory animus toward complainant's protected classes.
For those reasons, the agency's adoption of the AJ's decision 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
October 16, 2002
__________________
Date