0120122808
08-01-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120122808
Hearing No. 443-2012-00054X
Agency No. 1J-531-0032-11
DECISION
Complainant filed an appeal from the Agency's final order, dated May 23, 2012. The appeal concerns 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodial at the Agency's Milwaukee Processing and Distribution Center facility in Milwaukee, Wisconsin.
On September 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when:
1. On May 27, 2011, he was not paid for four hours of higher level pay and overtime;
2. On May 29, 2011, he was not paid for four hours of higher level pay;
3. Between April 10, 2011 and June 22, 2011, a junior coworker was assigned higher pay, instead of Complainant.
According to the EEO Dispute Resolution Specialist (DRS) Inquiry Report, Complainant raised additional issues. Specifically, he also alleged that: 1) on May 17, 2011, his supervisor told Complainant that he was a "floater;" 2) On June 12, 2011, he was bypassed as group leader; 3) On June 25, 2011, he was humiliated in front of others and yelled at for being on the fork lift; 4) On June 21, 2011, he was told that he failed to follow instructions and, on July 4, 2011, he was bypassed for the group leader assignment.
The Agency dismissed all of his claims, except the three pay-related claims, for failure to state a claim.
The pertinent record developed during the investigation shows that Complainant worked as a Custodian. He reported to the Supervisor (Caucasian), who was aware of Complainant's race.
The record also shows that Complainant has filed previous complaints, although Complainant did not allege retaliation as an issue.
Claim One - Not Paid for Four Hours of Higher Level Pay and Overtime
On May 27, 2011, Complainant performed four hours of work for which he was entitled to be paid at a pay grade of Level 5. This fact is undisputed and confirmed by the affidavits of Complainant and his supervisor. He also worked 7.94 hours of overtime at his base pay grade of Level 4. Complainant's supervisor was responsible for ensuring that Complainant was paid for four hours of higher pay and overtime. The Supervisor was rushing to leave on vacation. Complainant's supervisor averred that he forgot to put Complainant in for four hours of higher level pay. The Supervisor's replacement averred that he was unaware that Complainant was owed additional money. Complainant's pay was adjusted by his Supervisor and Complainant received the higher level pay due to him for his work on May 27, 2011.
Claim Two - Not Paid for Four Hours on May 29, 2011
Another supervisor was substituting for Complainant's supervisor on May 29, 2011. The substitute supervisor averred that he was unaware of which employees were entitled to higher level pay and did not put in for higher level pay for any employee. When Complainant's first line supervisor returned, he learned of Complainant's pay discrepancy for May 27 and May 29 in July 2011, when he was contacted by the EEO counselor. Affidavit B (the Supervisor). Thereafter, Complainant received the payments due to him.
Claim Three - Junior, Caucasian Coworker Assigned Higher Level Pay
The record shows that another Laborer Custodial was deemed "promotion-eligible for the position of Group Leader, Custodial PS 05" on May 10, 2011. The other employee is Caucasian. The Agency does not dispute that it "routinely selected" the Caucasian employee for higher level work because he was "becoming promotion-eligible." The Agency did not dispute that the Caucasian employee received a higher-level pay on at least four occasions before May 10, 2011, when he was determined to be eligible for promotion. The record also shows that Complainant was allowed to perform higher level work and received the higher pay, although he was not considered "promotion-eligible."
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. On April 12, 2012, the Agency filed a motion for a decision without a hearing. When the Complainant did not object, the AJ assigned to the case granted the motion.
The AJ allowed Complainant to amend his complaint to allege that a junior coworker was assigned higher pay. The AJ found that there were no issues of material fact to be resolved by a hearing. The AJ noted that "Complainant failed to respond to the Agency's Motion for Summary Judgment and failed to assert any facts evincing race discrimination." The AJ reasoned that, assuming that Complainant stated a prima facie case, he failed to show that the Agency's explanation for not paying him for the higher level pay was unbelievable. The AJ concluded "no evidence was presented to indicate that both supervisors made anything but an honest mistake." The AJ also found that Complainant "failed to contest the Agency's undisputed fact that [the Caucasian comparator] was routinely selected for higher level work as a result of becoming promotion-eligible on May 10, 2011." The AJ next found that "Complainant also failed to allege any discriminatory basis for [the comparator's] higher level assignment on the four days before May 10, 2011." The AJ entered an order in favor of the Agency.
The Agency's final action implemented the AJ's decision.
This appeal followed.
ANALYSIS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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, 322-23 (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.
Upon review of the record, we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed for the claims before us and there are no disputes of material fact with regard to those claims.1
As an initial matter, we note that Complainant did not identify any specific credibility issues or material facts in dispute.
Further, we find that Complainant was provided notice of the proposal to issue a decision without a hearing, the opportunity to respond, and a chance to engage in discovery before responding. Complainant maintains that he was unable to respond to the motion for summary judgment, because his former attorney failed to provide him notice of his obligation to respond. He also argues that he did not have the records that he needed to respond, but he did not show that he ever asked for the records in discovery. Moreover, we are not persuaded that the AJ's decision was improper.
Disparate Treatment
Section 717 of Title VII states that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination."
To prevail in a disparate treatment claim, Complainant must establish that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
For purposes of our analysis, we assume that Complainant established his prima facie case of race discrimination. Complainant established that he is an African-American and that he was denied level 5 assignments and overtime while a Caucasian employee was provided the higher level pay and assignments.
In this case, we find that the Agency articulated a legitimate nondiscriminatory reason for its actions (his supervisor forgot to put in the paperwork to pay Complainant at the higher rate and the substitute supervisor was unaware that Complainant was entitled to higher pay). Complainant did not show that the Agency's stated reason was a pretext for the alleged unlawful discrimination.
The claims before us pertain to the acknowledged delay in paying Complainant for the dates on which he performed higher paying assignments or overtime, but had not been timely paid. Complainant failed to introduce any evidence that the stated reasons were untrue.
Instead, looking at the evidence in the light most favorable, Complainant averred that his supervisor "has a history of not paying [him] higher level pay, paying [him] less hours than white employees for doing the same higher level jobs, by-passing [him] for higher level jobs and giving the jobs to white employees with less seniority." Affidavit A. Complainant also offers, as evidence, statements from other African-American employees that they have filed EEO complaints against his immediate supervisor.2 Yet, the undisputed record shows that the Agency provided Complainant with opportunities for the higher level work and compensated him when he worked the Level 5 assignments or overtime. The record reflects that Complainant received higher level pay without being "promotion- eligible" on the dates relevant to this case.
With regard to the claim that the Caucasian employee was provided additional opportunities, the AJ considered his amended claim. He found that it is undisputed that the Agency selected the coworker for higher level work as a result of his becoming "promotion-eligible." It is undisputed that Complainant was not considered "promotion-eligible" during the period at issue, but the Agency still provided Complainant with the opportunity to perform the higher-paying work and overtime. Because these facts are not disputed, we find that the entry of summary judgment is appropriate.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Action.
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 tends 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
August 1, 2014
__________________
Date
1 Complainant did not challenge the Agency's partial dismissal of his claims that he was told that he was a "floater," humiliated when he was told to correct his work sheet and asked if he wanted to be Group Leader for the day, only after the Caucasian employee told the Supervisor that he should first ask Complainant, before asking him.
2 Our records reflect that there is another pending appeal, Complainant v. United States Postal Service - Great Lakes, EEOC Appeal No. 0120140881. That appeal raises claims of retaliation and a hostile work environment.
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0120122808
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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