0120064995
05-16-2008
Raymond Paniagua, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Raymond Paniagua,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200649951
Hearing No. 480-2006-00005X
Agency No. 1F-904-0013-05
DECISION
Complainant filed an appeal with this Commission from the August 7,
2006 agency decision which implemented the July 31, 2006 decision of
the EEOC Administrative Judge (AJ) finding no discrimination.
Complainant is 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., 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.
Specifically, complainant alleges that the agency discriminated against
him on the bases of his race/national origin (Hispanic), color (brown),
age (over 40), disability (back injury, disk herniation and disk bulges
at L2-3, L3-4 and L4-5), and in reprisal when since January 2004, he
was not used as a 204-B supervisor.
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 AJ. Complainant requested a hearing. Over the
complainant's objections, the AJ granted the agency's motion for a
decision without a hearing (summary judgment).
The record reveals that complainant was employed by the agency since
March 30, 1973, and at the time of his complaint was employed as
an Equipment Operator at the agency's Los Angeles, Bulk Mail Center.
On January 6, 2002, complainant was injured on the job and was diagnosed
with disk herniation and disk bulges. On January 9, 2002, complainant
was limited in lifting, pushing or pulling and from repetitive bending,
stooping, climbing, kneeling, squatting and crawling. In August 2002
and thereafter, complainant was restricted from lifting over 50 pounds
and from repetitive bending.
In his decision finding no discrimination, the AJ found, for purposes
of his decision, that complainant established that he had a disability.
The AJ concluded that complainant had failed to establish a prima facie
case of race, color, age, national origin, or disability discrimination
because complainant failed to show that he had completed Form 991
(a and b) which, the AJ found, was required in order for complainant
to be considered for a 204-B supervisory position. The AJ also found
that complainant had not identified any similarly situated employees who
did not have to submit the Form 991 and who were selected by the Tour 3
Manager of Distribution Operations (MDO). The AJ noted complainant's
assertion that the agency had not presented any evidence of a policy
or regulation that required or authorized the Tour 3 MDO to require
the completion of a Form 991. The AJ determined that the absence of
such a policy or regulation did not show that because the Tour 3 MDO
instituted the requirement that he did so for discriminatory reasons.
The AJ also noted that another employee whom complainant identified as
not having completed Form 991 was selected by another MDO and not by
the Tour 3 MDO.
Regarding reprisal, the AJ found that complainant failed to establish
a prima facie case of reprisal because complainant had provided no
evidence that he was engaged in any protected activity prior to the
instant complaint. The AJ also found that complainant could not show
that the Tour 3 MDO's action was in retaliation for engaging in protected
EEO activity.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding 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. 01A24206 (July 11, 2003).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
Complainant may establish a prima facie case of reprisal by showing that:
(1) complainant engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
To prevail in a disparate treatment claim, 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 complainant
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).
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply
the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, supra. See Heyman v. Queens Village Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999);
Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this
analysis, in order to establish a prima facie case, complainant
must demonstrate that: (1) complainant is an "individual with a
disability"; (2) he is "qualified" for the position held or desired;
(3) complainant was subjected to an adverse employment action; and
(4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001).
In disparate treatment claims, the prima facie inquiry may be dispensed
with where the agency has articulated legitimate, 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.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that no genuine issue of material fact
exists and that the record was adequately developed. We find that the
AJ's decision was proper. Assuming without deciding that complainant
is a person with a disability and also assuming, without deciding, that
complainant has established a prima facie case of discrimination and
retaliation on all alleged bases, the record establishes that complainant
was not selected by the Tour 3 MDO because he failed to submit the Form
991 and not for any discriminatory reason.
Construing the evidence in the light most favorable to complainant,
complainant has not shown by a preponderance of the evidence that the
agency's reason for not selecting him for a 204-B supervisory position
was pretextual or motivated by discriminatory animus. At all times,
the ultimate burden of persuasion remains with complainant to demonstrate
by a preponderance of the evidence that the agency's reasons for any of
its actions were pretextual or motivated by intentional discrimination.
Complainant's claims fail because he failed to carry this burden.
The agency's decision finding no discrimination is 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
May 16, 2008
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120064995
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120064995