0120082673
08-31-2009
John P. Batiste, Jr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John P. Batiste, Jr,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082673
Hearing No. 461-2006-00080X
Agency No. 1G-701-0002-06
DECISION
On May 21, 2008, complainant filed a timely appeal from the agency's final
order, dated May 2, 2008, concerning his equal employment opportunity
(EEO) complaint claiming 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 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 order.
BACKGROUND
During the period at issue, complainant worked as a mail processing
clerk, on a modified assignment, at the New Orleans Processing and
Distribution Center. Believing that he was subjected to discrimination
complainant contacted an EEO Counselor. Informal efforts to resolve
complainant's concerns were unsuccessful. On June 8, 2006, complainant
filed a formal complaint claiming that he was the victim of unlawful
employment discrimination on the basis of age (56) , disability (stress;
knees/back/shoulder) and race (black).1
The agency framed the claims as follows:
(1) On March 12, 2006, complainant discovered that his customized lumbar
support workmen's compensation orthopedic chair was missing and he was
not compensated for it;
(2) Complainant elected to take the Voluntary Early Retirement (VER),
on January 17, 2006, and as of today, complainant has not received an
answer from the agency; and,
(3) On an unspecified date, complainant was not assigned a Rehab
position.2
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). Complainant timely
requested a hearing. Over complainant's objections, the AJ granted
the agency's February 21, 2007 motion for a decision without a hearing.
On April 21, 2008, the AJ issued a decision finding no discrimination.
The AJ found that complainant did not establish a prima facie case
for any of his claims. Specifically, regarding the basis of age,
the AJ noted that the agency officials deny knowing complainant's age.
Additionally, of all the responsible officials named by complainant,
most were no more than six years younger, not "significantly younger."
The AJ found no evidence that a similarly situated younger individual
was treated more favorably.
Regarding the basis of race, the AJ again determined that complainant
failed to identify a similarly situated individual outside his protected
class that was treated more favorably. According to the AJ, complainant
acknowledged that he did not request a Rehab position.
Regarding the basis of disability, the AJ found that even assuming
that complainant was a "qualified individual with a disability", there
was no evidence of "discriminatory animus behind the fate of the chair
(claim (1)). . . ." Additionally, the record indicated that the chair
was purchased by OWCP and therefore complainant was not entitled to
any compensation for it. With respect to the early retirement (claim
(2)), the AJ found that complainant was not qualified. Additionally,
the record showed that when complainant was re-directed to the proper
point of contact, he never contacted the individual to whom he had
been directed.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that claim (1) states a claim because the
agency "took adverse action by not continuing to provide an ergonomic
chair and not following the orders [issued in a prior appeal]." Also,
complainant contends that he now knows the party who damaged his chair:
the Parts Clerk for the Maintenance Department.
Complainant disputes the agency's contention that he was not qualified
for early retirement, but arguing that post-Katrina downsizing resulted
in an "Employee Notification - Involuntary Reassignment." The notice
offered complainant the choice between relocating to Port Allen or VER.
Complainant states he notified the agency of his election , VER, to no
response.
Regarding claim (3), complainant argues that he did not "request" a Rehab
position because as an on-the-job injured employee he was not required
to do so.
ANALYSIS AND FINDINGS
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 the AJ properly granted the agency's motion for a decision
without a hearing. The record does not indicate that any genuine issues
of material fact exist.
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). Complainant
must initially establish 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 Construction
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 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
Here, complainant contends that he suffered discrimination when his
ergonomic chair was missing. The Commission finds that his claim is not
supported by the record. Complainant has not established any connection
between the loss of his chair and his age or disability. The record
indicates that when the chair went missing, complainant contacted
the Postal Police rather than his supervisor. Further, complainant's
supervisor attested that complainant had no knowledge of the special
chair and that complainant did not request a replacement from him.
In claim (2), complainant alleges he was discriminated against when
the agency failed to response to his attempts to take early retirement.
Once again, the record contains no nexus between complainant's race, age,
or disabilities and the VER. Even assuming that complainant received
the notification offering a choice of reassignment or retirement and
selected the latter, there is no evidence that the agency's inaction
was related to complainant's protected classes. Rather, it appears
that complainant contacted one agency official regarding VER, who then
re-directed complainant to a personnel official. The agency contends
that complainant never contacted that individual.
As noted above, with respect to the Rehab position, the agency states
complainant was not assigned a Rehab position because he did not request
one. Complainant counters by arguing that he was not required to make
such a request. He has not established, however, any nexus between the
agency's inaction and his race or age.
Finally, we note that complainant has not presented similarly situated
individuals, outside of his protected classes, that were treated more
favorably. For example, an agency official attested that there were
other on-the job injured employees that also were not assigned Rehab
positions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 31, 2009
__________________
Date
1 Complainant claimed discrimination based on age and disability with
respect to claim (1). Complainant claimed discrimination on the basis
of race and age regarding claim (3).
2 The formal complaint also included a fourth claim: on February 22,
2006 and March 9, 2006, complainant received a notice from the Injury
Compensation Office requesting that he take a new physical. In June
2006, the agency dismissed the matter for failure to state a claim.
Complainant does not challenge the dismissal on appeal. Consequently,
the Commission shall not consider the matter in the instant decision.
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0120082673
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082673