01a40759
04-22-2005
Wayne B. Dyess, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wayne B. Dyess v. United States Postal Service
01A40759
April 22, 2005
.
Wayne B. Dyess,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40759
Agency No. 4G-752-0075-03
Hearing No. 310-2003-0586X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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, a Manager of Customer Service at the Innwood Station in
Dallas, Texas, filed a formal EEO complaint dated December 17, 2002.
Complainant claimed that he was subjected to unlawful employment
discrimination on the bases of race, color, national origin and sex when:
1) on September 23, 2002, he was placed in a non-pay, non-duty status
by the Area Manager because his office failed a security audit:
2) on September 10, 2002 he received a Letter of Warning in Lieu of a
7 day suspension dated August 13, 2002; and
3) on September 27, 2002 he received a Letter of AWOL dated September
26, 2002.
By letter dated March 7, 2003, the agency accepted claim (1) for
investigation, and dismissed claims (2) and (3).<1> At the conclusion
of the complaint investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ concluded that no material facts were in dispute,
and issued a summary judgment decision without a hearing, finding no
discrimination.
In her decision addressing claim (1), the AJ concluded that complainant
had not shown that he was treated any differently than persons not
within his protected class, and had not established a prima facie case
of discrimination with regard to any of the alleged bases.
The AJ also found that, regardless of whether complainant established a
prima facie case, the agency provided a legitimate, nondiscriminatory
reason for its actions, which complainant did not establish was a pretext
to mask unlawful discrimination. Specifically, the AJ determined that
the agency testified that managers were told that a failed security
audit would result in a manager's non-duty non-pay status.
In its final action dated October 16, 2003, the agency adopted the AJ's
decision finding no discrimination.
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 grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. 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 legitimate, nondiscriminatory reasons for its
actions. The record shows that complainant was put in non-pay, non-duty
status on September 23, 2002 because of a failed security audit conducted
on September 20, 2002 at the Innwood Station where complainant was the
manager. The record indicates that each manager in the Southwest Area had
been instructed that they were responsible for their station security,
and that during the audit by employees of the Southwest Area office,
complainant's unit failed because six employees did not have their
identification badges on their person or properly displayed. The record
also reflects that, despite complainant's contentions that comparative
employees were not �issued the same action� as he, managers whose units
failed the same audit were placed in the same non-pay, non-duty status
as complainant. While complainant cites one comparative manager that
challenged the audit and ultimately received a passing score, the record
shows that those managers actually failing the security audit were placed
in the same status as complainant. Complainant has not rebutted the
agency's articulated legitimate, nondiscriminatory reason for its action,
and has thus failed to show agency pretext for discrimination.
Accordingly, the agency's final action implementing the AJ's finding of
no discrimination 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
April 22, 2005
__________________
Date
1We note that, as complainant did not raise
objection to the agency's dismissals below, and has not identified claims
(2) and (3) as part of his appeal, we do not address these claims in
our decision.