Liman Roy, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionDec 2, 2011
0120112785 (E.E.O.C. Dec. 2, 2011)

0120112785

12-02-2011

Liman Roy, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.




Liman Roy,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120112785

Hearing No. 460-2010-00177X

Agency No. 1G-772-0014-10

DECISION

On April 12, 2011, Complainant filed an appeal from the Agency’s March

10, 2011, final order 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 the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal

timely and accepts it for the Commission’s de novo review pursuant to

29 C.F.R. § 1614.405(a). For the following reasons, the Commission

AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Custodian at the Agency’s North Houston Processing & Distribution

Center in Texas. During calendar year 2009, Complainant incurred more

than 86 hours of unscheduled absences. These absences disrupted postal

operations and required management to scramble to find coverage at the

last minute on multiple occasions, sometimes resulting in additional

overtime costs. As a result, in January 2010, Complainant received a

Letter of Warning.

On April 29, 2010, Complainant filed an EEO complaint alleging that the

Agency discriminated against him on the bases of race (African-American)

and age (74) when he received a Letter of Warning. At the conclusion

of the investigation, the Agency provided Complainant 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. Not long after the AJ assigned to the case issued a Notice

of Intent to Issue a Decision Without a Hearing, the Agency moved

for the same. Complainant objected arguing that he was being treated

disparately and that the Agency was upsetting his aging wife by calling

to determine his whereabouts. Over these objections, the AJ issued a

decision without a hearing on March 4, 2011.

In her decision, the AJ found that Complainant failed to establish a

prima facie case of discrimination as both older and younger employees

of different races had also received discipline for poor attendance.

The AJ also noted that most of Complainant’s named comparators

were in his protected classes and did not have similar unscheduled

attendance problems. Specifically, their absences were scheduled and

did not adversely affect postal operations. Even assuming an inference

of race and age discrimination, the AJ concluded that the Agency

articulated a legitimate, non discriminatory reason for its action,

namely Complainant’s unscheduled absences were extremely disruptive

and in flagrant violation of the Employee Labor Manual. The AJ found

that while Complainant alleged he was being targeted because of his age,

he provided no evidence to support or corroborate his claim. The Agency

subsequently issued a final order adopting the AJ’s finding that

Complainant failed to adduce evidence that the Agency subjected him to

discrimination as alleged. This appeal followed, but Complainant did

not submit a statement in support of it.

ANALYSIS AND FINDINGS

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.

Here, Complainant does not dispute that he incurred several unscheduled

absences, nor does he adequately respond to the fact that he failed

to compare himself to other individuals who actually engaged in similar

behavior. Moreover, the record establishes that employees with attendance

problems were routinely disciplined. Complainant’s belief that

management’s actions were unlawfully age based is simply his belief.

It is not evidence, and the evidence of record in fact leads to the

opposite conclusion. Accordingly, we find that there were no genuine

issues of material fact, and the AJ’s decision to issue a decision

without a hearing was appropriate.1

CONCLUSION

Based on a thorough review of the record, we find that no reasonable fact

finder could find in Complainant’s favor, and we AFFIRM the Agency’s

final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 (S0610)

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 (Z0610)

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

December 2, 2011

__________________

Date

1 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.

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0120112785

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120112785