01A31214
07-28-2003
Jody K. George, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jody K. George v. United States Postal Service
01A31214
07-28-03
.
Jody K. George,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31214
Agency No. 4F956016497
Hearing No. 370-A2-x2682
DECISION
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.
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.
BACKGROUND
On April 30, 1997, the Supervisor of Customer Services (Supervisor)
approved one (1) hour of overtime for complainant, a Letter Carrier,
T-6 string, at the agency's Merced, California facility. Complainant
estimated 1 hour and 15 minutes of overtime on his PS Form 3996.
The complainant actually worked 1 hour and 51 minutes of overtime
that day. Supervisor stated that he asked complainant if another
supervisor gave him permission to work additional overtime and that
complainant gave no acceptable reason for his actions. Supervisor
therefore issued complainant a Letter of Warning (LOW), on May 20,
1997, for failure to follow instruction/working unauthorized overtime.
Complainant filed a grievance, where he established that he did not
understand the instructions given him. The agency, upon learning this,
reduced the LOW to an Official Discussion. Complainant filed a formal EEO
complaint on October 17, 1997, alleging that the agency had discriminated
against him on the bases of race (Caucasian), national origin (Polish),
sex (male), religion (Christian), color (White), age (D.O.B. 9/23/55),
and reprisal for prior EEO activity when he was issued the LOW.
On November 17, 1997, the agency dismissed complainant's claim as moot.
On appeal, the Commission vacated and remanded complainant's claim as
to determine whether there was reasonable expectation that the alleged
violation would recur. George v. United States Postal Service, EEOC
Appeal No. 01981938 (Mar. 4, 1999). After supplemental investigation, on
March 24, 1999, the agency again dismissed the complaint as moot because
the LOW was reduced to an Official Discussion rendering complainant
no longer aggrieved. Complainant appealed. The Commission reversed
and remanded the complaint because an allegation cannot be dismissed as
being moot without a determination being made as to whether complainant
is entitled to compensatory damages. George v. United States Postal
Service, EEOC Appeal Nos. 01994155, 01A12732 (June 26, 2001). After
further investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant established a prima facie case
of discrimination and reprisal because he is a member of several
protected classes, was subjected to an adverse employment action,
and similarly situated employees not in complainant's protected class
were treated differently.<1> The AJ further concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
and that complainant did not establish that more likely than not, these
reasons were a pretext to mask unlawful discrimination or retaliation.
Hence, the AJ ultimately found no discrimination, in favor of the agency.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
FINDINGS AND ANALYSIS
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 judgement procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. In ruling on a motion for summary judgment the court's
role is not to weigh the evidence, but rather to determine whether there
are genuine issues of fact for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). Summary judgment is appropriate when a court
determines that there exists no genuine issue of material fact given
the substantive legal and evidentiary standards that apply to the case.
Id. at 255. 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. 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).
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.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995). A complainant can show pretext by revealing "such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer's proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence."
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations
omitted). However, "mere conjecture that [the] employer's explanation
is a pretext for intentional discrimination is an insufficient basis
for denial of summary judgment." Branson v. Price River Coal Co., 853
F.2d 768, 772 (10th Cir. 1988).
As the facts above show, the agency articulated a legitimate,
non-discriminatory reason for the issuance of the LOW. To demonstrate
pretext, complainant lists several employees who were not similarly
disciplined. While there is no record evidence of discipline, or lack
thereof, given to these employees, complainant's statement alone is
insufficient to meet his burden to show pretext. Moreover, complainant
has not proffered any evidence to show that the LOW was issued because
of an intent to discriminate against him on any of the bases listed.
After careful review of the record, the Commission finds that the
issuance of a decision without a hearing was appropriate as there are no
genuine issues of material fact in dispute. We find that the AJ properly
summarized the relevant facts and referenced the appropriate regulations,
policies and laws. Therefore, it is the decision of the Commission to
AFFIRM the agency.
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
____07-28-03______________
Date
1It is unclear from the record whether the comparative employees were
supervised by complainant's supervisor or another supervisor. However,
because the agency articulated legitimate non-discriminatory reasons
for its actions, we assume these cited employees are sufficient to
raise an inference of discrimination and retaliation.