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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