01A33938_r
09-30-2003
Stanley F. Fair, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stanley F. Fair, Jr. v. United States Postal Service
01A33938
September 30, 2003
.
Stanley F. Fair, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33938
Agency No. 4F-907-0037-01
Hearing No. 340-A1-3400X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Distribution Clerk, at the
agency's Buena Park Post Office in Buena Park, California, filed a
formal EEO complaint on December 18, 2000, alleging that the agency had
discriminated against him on the basis of age (D.O.B. 11/22/52) when
the agency refused to grant his August 28, 2000 request for Saturdays
off for the next six months.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of age discrimination. The AJ further found that even assuming arguendo
that complainant established a prima facie case of age discrimination,
complainant failed to establish, by a preponderance of the evidence,
that the agency's articulated reasons were a pretext to mask unlawful
discrimination.
The AJ noted that although complainant and the named employee identified
by complainant as a �similarly situated� individual share the same
Supervisor, it was the Delivery Supervisor who approved the named
employee's request for weekends off from May to September 2000. The AJ
further found that complainant's Supervisor was not involved in the
approval of the named employee's requests. Further, the AJ determined
that complainant otherwise failed to demonstrate that similarly situated
employees not in his protected class were treated more favorably under
similar circumstances. Furthermore, the AJ determined that complainant's
Supervisor denied complainant's August 28, 2000 schedule change request
based on the needs of the service, namely, to ensure proper and sufficient
staffing on weekends. The AJ also concluded that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination.
The agency's final action implemented the AJ's decision.
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, 322-323 (1986); Oliver v. Digital Equipment Corporation,
846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the
potential to affect the outcome of a case. If a case can only be resolved
by weighing conflicting evidence, summary judgment is not appropriate. In
the context of an administrative proceeding, an AJ may properly consider
summary judgment only upon a determination that the record has been
adequately developed for summary disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the AJ properly granted summary judgment
in this case because the record is adequate and there are no material
facts in dispute. See Murphy v. Department of the Army, EEOC Appeal
No. 01A04099 (July 11, 2003). Moreover, the Commission determines that the
record supports the AJ's finding that the agency articulated a legitimate,
nondiscriminatory reason for its action; specifically, that complainant's
Supervisor denied his August 28, 2000 schedule change request based
on the needs of the service. Finally, we also find that the record
supports the AJ's determination that complainant failed to rebut the
agency's articulated legitimate, nondiscriminatory reasons for its action.
Accordingly, the agency's final action implementing the AJ 's decision
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
September 30, 2003
__________________
Date
1The record, however, reveals that in the
affidavit of complainant's Supervisor dated January 25, 2001, and
in complainant's Request for Temporary Schedule Change for Personal
Convenience Form dated August 28, 2000, complainant requested to have
Saturdays off for four months, from September 1, 2000 through January
1, 2001.