0120065080
05-29-2008
Lloyd Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lloyd Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200650801
Agency No. 1-J-486-0020-04
Hearing No. 230-2005-0253X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the EEOC Administrative Judge's (AJ) finding of no
discrimination2 dated July 31, 2006, 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. Complainant alleged that the agency
discriminated against him on the basis of race (African-American) when
on September 5, 2004, he was told that he had to get permission to use
the restroom.
Complainant, a custodian at the Royal Oak Processing and Distribution
Center in Troy, Michigan, was told by his supervisor that he had to ask
permission to go to the bathroom, after his supervisor found complainant
on the facility's dock, which was not part of his assigned work route.
Complainant was talking to a female employee in the dock area and when
his supervisor questioned him about his presence in the dock, complainant
told him that he had been using the restroom. His supervisor then told
complainant that there were no restrooms in the dock. Complainant then
said that he was getting a drink of water. Complainant's supervisor
told him that he had observed him talking to the female employee and
that he needed to get back to work.
The supervisor told complainant that he would have to use the restroom
during his breaks or get medical documentation showing that he had
to use the restroom more frequently. Complainant maintains that
he was told that he would have to get permission in order to go to
the restroom. The supervisor then walked away from the conversation.
In his sworn deposition testimony, complainant indicated that following
the conversation with the supervisor, he never had to ask for permission
to use the restroom, he always used the restroom when he needed to,
and he was never disciplined for using the restroom.
Following an investigation, complainant requested a hearing before an AJ.
The AJ assigned to the case issued a decision without a hearing finding
no discrimination. The AJ found that complainant had not shown that he
suffered a harm or loss affecting a term or condition of his employment.
He found that complainant had only showed that he had a conversation
with his supervisor about using the restroom that never resulted in
any adverse action against complainant. Further, the AJ found that
complainant had presented no evidence that he suffered adverse employment
actions under circumstances that give rise to an inference of unlawful
racial discrimination. The AJ determined that complainant failed to
show that a similarly situated employee not of his protected basis was
treated more favorably.
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure 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). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003). We find that
the AJ's determination to issue a decision without a hearing (summary
judgment) was appropriate.
On appeal, complainant contends that his supervisor gave a standing order
which he is unable to follow. Complainant also contends that the white
female custodian is not required to ask permission to go to the restroom.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to affirm the finding of no
discrimination. The Commission agrees that complainant failed to show
that he was aggrieved. There is no evidence in the record that suggests
that the order to ask permission was ever carried out. Further, we also
agree that complainant was not able to demonstrate that the order to ask
permission to go to the restroom was related to his race. For the sake
of analysis only, if we assume that complainant established a prima facie
case of race discrimination we also find that the agency articulated
legitimate nondiscriminatory reasons for its actions. Specifically,
we find that the order was made because complainant was out of his work
area talking to another employee while he was on the clock. We find that
complainant has submitted no evidence that the agency's articulated reason
is pretext for discrimination. Moreover, with respect to complainant's
contentions on appeal, we find that no action was ever taken in regard
to this order. Further, we do not find that the white female custodian
is similarly situated to complainant as there is no evidence presented
that she was treated more favorably after she was caught outside of her
work area talking to an employee and was not forthcoming. Finally, we
find that there are no material facts at issue in this case. Therefore,
the Administrative Judge's issuance of a decision without a hearing was
appropriate. The finding of no discrimination is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
______05-29-08____________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Based on the record, it does not appear that the agency issued a
final notice because neither complainant nor the agency mentions this
document.
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0120065080
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065080