01992918
03-04-2002
William L. Tanner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
William L. Tanner v. United States Postal Service
01992918
March 4, 2002
.
William L. Tanner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01992918
Agency No. 4-D-230-1247-95
Hearing No. 120-98-9603X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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.; the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act)<1>, as amended, 29 U.S.C. � 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the bases of race (White), sex (male), age
(DOB: 2/3/43), disability (hearing impaired), and retaliation (prior
EEO activity under Title VII, ADEA, and Rehabilitation Act) when:
(1) from May 9 to May 15, 1994, he was not given a correct route
assignment;
on June 6, 1994, he was given a Letter of Warning;
six months following his resignation on January 13, 1995 (on July 2,
1995) he believed he was forced to resign; and,
prior to his resignation he was not made aware of the Employee Assistance
Program (EAP).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that during the relevant time, complainant was
employed as a City Carrier at the agency's Westhampton Station Postal
facility in Richmond, Virginia. Complainant, who is hearing impaired,
was hired in 1980 as a disabled veteran. On June 6, 1994, complainant
was issued a Letter of Warning by his supervisor (S1: White female, DOB:
10/9/65, no disability) because he caused disruption on the workroom
floor, including: being rude, disrespectful, unobliging to a supervisor,
and failing to report an accident. The Letter of Warning was approved by
a union representative. On January 7, 1995, complainant was transferred
to a different postal facility and given a new route. On the first day
of his new route, complainant's life was threatened by residents when
they told him not to return. Approximately two days after this incident,
complainant called in to work and told his acting supervisor (S2: Black
male, DOB: 12/13/60, no disability) that he �couldn't take it anymore�
and was, therefore, resigning. Complainant also informed S2 that he
had just received a $40,000 a year real estate opportunity. On or about
January 13, 1995, complainant completed a resignation form stating that
he was resigning �on [his] own volition� and without any coercion.
Pursuant to 29 C.F.R. � 1614.302(b), complainant filed an appeal
with the Merit Systems Protection Board (MSPB) on August 20, 1995,
claiming that his resignation on January 13, 1995, was involuntary.
The MSPB AJ heard testimony from all the parties involved and dismissed
complainant's appeal concluding his resignation was voluntary, thus the
MSPB lacked jurisdiction. The MSPB AJ also concluded that the record
evidence did not show that the agency failed to comply with procedures
governing complainant's resignation and/or referral to EAP. The MSPB
AJ further concluded that the agency was not obligated to accommodate
complainant in that the existence of complainant's disability was not
relevant to the voluntariness of his resignation.
Thereafter, complainant filed a formal EEO complaint with the agency on
July 28, 1995, alleging that the agency had discriminated against him as
referenced above. See 29 C.F.R. �1614.302(b) (If ... the MSPB dismisses
the [mixed case] appeal for jurisdictional reasons,� the person shall
be notified of the right to seek EEO counseling). 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 agency's final decision implemented the AJ's decision. On appeal,
complainant contends that the AJ erred when he did not address three
unspecified items of evidence which he states had not been presented
to the MSPB. Complainant also contends that the agency deceived him
in his exit interview by stating that he be reinstated whenever he
chose without being required to take any examinations. In response,
the agency restates the position it took in its FAD, and requests that
we affirm its final 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. 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, 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.
Here, after a careful review of the record, we find that the AJ properly
concluded that complainant failed to proffer evidence sufficient to
establish a prima facie case of discrimination with respect to his
allegations concerning his route assignment, the Letter of Warning or
the existence of the EAP.
In cases involving constructive discharge, the central question is
whether the agency, through its unlawful discriminatory behavior,
made complainant's working conditions so difficult that any reasonable
person in the employee's position would feel compelled to resign. Irving
v. Dubuque Packing, 689 F.2d 170 (10th Cir. 1982). The Commission has
adopted a three-pronged test for establishing a constructive discharge.
A complainant must show that: (1) a reasonable person in complainant's
position would have found the working conditions intolerable; (2)
conduct which constituted prohibited discriminatory treatment created
the intolerable working conditions; and (3) complainant's involuntary
resignation resulted from the intolerable working conditions. See
Czarnecki v. Department of Defense, EEOC Appeal No. 00944348 (August
8, 1995). It is well-settled that, in most instances, it takes more
than one or two incidents to create the intolerable working conditions
necessary to support a finding of constructive discharge. Nevertheless,
there have been exceptions to this principle, primarily in cases where
the conduct in question is particularly egregious. See Meyer v. Brown and
Root Construction Co., 661 F.2d 369 (5th Cir. 1981) (where the employer,
upon learning that complainant was pregnant, reassigned her from a desk
job to a warehouse job which involved heavy lifting).
Here, the Commission finds that the record contains no evidence whereby
a reasonable person would have found the agency's conduct so intolerable
that a resignation was warranted. In point of fact, complainant never
mentioned the threat to any of his supervisors. The Commission also
finds that none of the other issues raised by complainant amount to
egregious conduct that made resignation his only option.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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
March 4, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.