0120092032
09-01-2009
Juan W. Layme, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Juan W. Layme,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092032
Hearing No. 510-2008-00132X
Agency No. 4A-006-0059-05
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated February 25, 2009, dismissing his 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405(a).
During the relevant period, complainant worked as a mail clerk at a San
Juan, Puerto Rico facility of the agency. On May 6, 2005, complainant
initiated EEO contact alleging that the agency discriminated against him
on the bases of race (Peruvian), national origin (not from Puerto Rico),
disability (Post Traumatic Stress Disorder), and reprisal for prior
protected EEO activity when (1) he was informed that there was no work
available at his facility and was assigned to another station to cover
an emergency, and (2) the agency denied him training and opportunities
as a supervisor. In a formal EEO complaint dated September 2, 2005,
complainant alleged that the agency discriminated against him when
it removed him and took the actions alleged in (2). Initially, the
agency dismissed the claims pursuant to 29 C.F.R. � 1614.107(a) and
complainant filed an appeal with the Commission, which was docketed as
Layme v. U.S. Postal Service, EEOC Appeal No. 01A60481.
In Layme v. U.S. Postal Service, EEOC Appeal No. 01A60481 (April 25,
2006), the Commission found that the agency improperly dismissed (1) and
(2) for failure to state a claim and remanded the matters to the agency
for further processing. The agency conducted an investigation of (1)
and (2), after which complainant requested a hearing before an EEOC
Administrative Judge (AJ). Following an extensive procedural history
at the hearing stage, in an Order of Dismissal dated January 20, 2009,
the AJ dismissed complainant's claims "for failure to comply with orders
of the Administrative Judge." The AJ cited failure by complainant
to attend a telephonic prehearing conference and the hearing, without
adequate justification. The AJ returned the complaint to the agency
for a final decision.
In its February 25 final decision, the agency dismissed (1) pursuant to 29
C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact, stating that
management placed complainant at another facility effective February 5,
2005 to March 4, 2005 and complainant did not initiate EEO contact until
May 6, 2005; and (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim, stating that the record reveals that complainant had
various training and he failed to show that he requested and was denied
training or management opportunities. Further, the agency stated,
assuming complainant's claims are procedurally sufficient, he failed
to establish discrimination. The agency stated (1) in February 2005,
complainant was placed at another facility to cover an emergency -
leave for that station's employees and, in August 2005, complainant's
position and other similar positions were abolished under a District
Committee Review, but complainant remained to serve in other positions.
The agency reiterated its procedural explanation for (2). Summarily,
the agency found that complainant failed to establish prima facie
cases of discrimination or that the legitimate, nondiscriminatory
reasons articulated by the agency are pretext. The instant appeal from
complainant followed.
On appeal, complainant stated, as to (1), he was removed from his
position and assigned to another station between February 2005 and
August 2005 without regard for his medical restrictions and that he
is not grieving agency actions after August 6. For (2), complainant
stated that he learned that other clerks were scheduled and sent for
training during his placement at another assignment and a manager was
unwilling to provide him training or opportunities. Complainant stated
that managers spoke badly about him.
As 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "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").
We find that complainant failed to establish by a preponderance of
the evidence that discrimination occurred.1 To prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Corp. 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 Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't 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.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14,
1995). We find that complainant failed to present evidence that the
agency's actions were motivated by discriminatory animus toward his
protected classes. We find that complainant failed to show pretext.
Based on a thorough review of the record, we AFFIRM the final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
September 1, 2009
__________________
Date
1 We assume for the purpose of analysis that complainant is an individual
with a disability. See 29 C.F.R. � 1630.2(g)(1)
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0120092032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092032