ROY R. BRADLEY, APPELLANT, v. MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY. Appeal Nos. 01952244, 01963827 Hearing Nos. 230-94-4036X, 230-94-4037X Agency Nos. 4-B-1613-92, 4-B-1847-92 INTRODUCTION On February 2, 1995, Roy R. Bradley (appellant) timely initiated appeals1 to the Equal Employment Opportunity Commission (EEOC) from the final agency decisions of the Postmaster General, United States Postal Service (agency), concerning his equal employment opportunity (EEO) complaints. Appellant alleged that he was discriminated against because of race, sex, mental disability, and reprisal in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and § 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. The appeal is accepted by the Commission in accordance with the provisions of EEOC Order No. 960.001. ISSUES PRESENTED The issues presented are whether appellant has established by a preponderance of the evidence that the agency discriminated against him: (1) on the bases of race (Black), sex (male), mental disability (major depression), and reprisal when he was subjected to a raid on his residence conducted by the local police department and the Postal Inspection Service; and (2) on the basis of mental disability (major depression) when he was reassigned from the position of Multi-Position Letter-Sorting Machine (MPLSM) Operator, PS-6, to the position of Manual Distribution Clerk, PS-5. CONTENTIONS ON APPEAL Appellant, through his representative, contends on appeal that he was denied a fair and impartial hearing in that the administrative judge had appellant and his representative escorted from the hearing room under guard. Appellant further contends that he requested that his case be assigned to another administrative judge for another hearing, to no avail. The agency offers no new contentions on appeal. BACKGROUND In complaints dated July 16 and November 5, 1992, appellant, an employee of the agency's Detroit, Michigan, General Mail Facility (GMF) alleged that the agency discriminated against him as delineated in the above-entitled statement "Issues Presented." The agency investigated the complaints, provided appellant with copies of the investigative reports, and advised appellant of his right to request either a hearing before an EEOC administrative judge (AJ) or an immediate final agency decision (FAD) as to each complaint. Appellant requested a hearing in both cases, and the agency forwarded his complaints to the appropriate EEOC District Office for assignment to an AJ. A hearing on appellant's consolidated complaints was held on April 26, 1994. About three hours into the proceedings, the AJ terminated the hearing and informed the parties' of his intention to remand the case back the agency for appropriate disposition on account of misconduct by appellant's representative. Following the remand of the cases, on January 20, 1995, the agency issued a FAD on each complaint, both finding no discrimination. It is from these decisions that appellant now appeals. Issue 1 -- Raid on Appellant's Residence The record reflects that on April 9, 1992, a Postal Inspector was informed by a member of the Detroit Police Department (DPD) that two men appeared to be selling something, presumably drugs, to agency employees from a black Cadillac automobile regularly parked across the street from the GMF. The automobile was later determined to belong to appellant, and the two men were identified as appellant and his brother. Following surveillance by both the Postal Inspection Service and the DPD's Narcotics Division, which included an undercover "buy" of drugs from appellant's brother by a police officer, the DPD obtained a search warrant for appellant's residence from a County Magistrate. Several Postal Inspectors assisted the DPD in the execution of the search warrant, pursuant to an agreement with the Drug Enforcement Agency (DEA) which authorizes the Postal Inspection Service to participate in drug-related investigations involving agency facilities or employees. The search yielded a bag of marijuana and about $1400 cash, and resulted in the forfeiture of part of the cash under the state's forfeiture statute; appellant was not charged criminally. The Postal Inspection Service did not submit a report on this matter to officials of the Detroit GMF, and no disciplinary action was taken against appellant by the agency on account of the results of the raid on his residence. Appellant maintains that the actions of the Postal Inspection Service were motivated by his status as a Black male, and were in retaliation for his prior protected activity, which included a request for reasonable accommodation; prior EEO activity; and prior activity before the Merit Systems Protection Board (MSPB). There is no evidence that anyone in the Postal Inspection Service was aware of appellant's protected activity at the time of the events at issue. Issue 2 -- Reassignment to Lower-Level Position Appellant began his employment with the agency as an MPLSM Operator, PS-6, in 1976. MPLSM Operators work night-shift hours. In 1981, appellant was granted permanent light duty with the restriction that he could only work daytime hours, and was assigned the duties of a Manual Distribution Clerk, although he remained on the rolls as an MPLSM Operator. The record reflects that, on account of his mental disability, appellant is restricted from working after dark. In February 1992, appellant was informed that he was being returned to his duties as an MPLSM Operator with work hours of 10:30 a.m. to 7:00 p.m., which was considered a day-shift position. Appellant was offered a temporary shift change, until daylight savings time went into effect, in an effort to prevent him from having to work after dark. Appellant filed an EEO complaint, which resulted in a finding of no discrimination. Bradley v. U.S. Postal Service, EEOC Appeal No. 01931834 (October 6, 1993). Meanwhile, appellant remained off work rather than accept the accommodation which had been offered to him. Appellant subsequently filed a grievance alleging that he was being denied the right to work. Appellant states that he was told by a Union Steward that he would not be able to return to work unless he agreed to request reassignment as a PS-5 Manual Distribution Clerk. The Union Steward acknowledged providing appellant with that information, which had been conveyed to him by agency officials. On July 22, 1992, appellant submitted a request to be reassigned as a Manual Distribution Clerk with work hours of 7:00 a.m. to 3:30 p.m. On August 17, 1992, appellant signed an annotated copy of the letter, which further provided, "This agreement will change me from a Level 6 to a PS Level 5 with the same Step I currently have." An August 25, 1992, Grievance Settlement states, "The Grievant [appellant], as he requested, shall be reduced from a PS 6-12 to a PS 5-12...." Appellant nonetheless maintains that he was forced to accept the reassignment because he wanted to return to work. Appellant's grade level was lowered to PS-5 effective September 5, 1992. The record reflects that no PS-6 Clerks are assigned to the 7:00 a.m. to 3:30 p.m. shift. ANALYSIS AND FINDINGS As a preliminary matter, the Commission must address appellant's contentions regarding the termination of the hearing. The Commission's regulations confer broad discretion on AJs in the conduct of hearings. See 29 C.F.R. § 1614.109(c). Upon careful review of the hearing transcript, the Commission finds that, despite repeated warnings, appellant's representative engaged in contumacious conduct of the worst kind: asking questions which the witnesses could not comprehend, then berating the witnesses for failing to answer; repeatedly testifying rather than asking questions; vociferously arguing on the record with the agency representative and the AJ; defying the authority of the AJ with regard to evidentiary rulings and the conduct of the hearing; and threatening the AJ over an evidentiary ruling. Given these circumstances, the Commission finds that the AJ did not abuse his discretion by terminating the hearing and remanding the case to the agency. The Commission notes appellant's contention that he attempted, unsuccessfully, to have his case reassigned to another AJ for a second hearing. However, appellant has not drawn the Commission's attention to any authority in support of his request for a second chance at a hearing. Issue 1 -- Raid on Appellant's Residence The Commission's regulations provide for dismissal of a complaint which fails to state a claim. 29 C.F.R. § 1614.107(a). In order to state a claim, the complainant, appellant herein, must show that he is aggrieved with regard to a matter which is justiciable under a Federal anti-discrimination statute. The requirement that a person be "aggrieved" in order to file an EEO complaint is implicit in the Federal regulations: "A complaint must contain a signed statement from the person claiming to be aggrieved or that person's attorney." 29 C.F.R. § 1614.106(c). Courts have interpreted "aggrieved" to mean that an individual has suffered a personal loss or harm with respect to a term, condition, or privilege of employment. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972); Byrnes v. Dept. of State, EEOC Appeal No. 01930228 (January 14, 1993). In the instant case, appellant has not suffered a personal loss or harm with respect to a term, condition, or privilege of his employment. The record reflects that the agency has taken no disciplinary action against appellant on account of the raid on his residence. Neither has appellant sustained any other "direct or personal employment-related deprivation." Jacquez v. Dept. of the Treasury, EEOC Appeal No. 01940694 (June 14, 1994). Further, although Postal Inspectors offered assistance in the execution of the search warrant, it was the DPD which initiated the criminal investigation, conducted the undercover "buy," obtained the search warrant from a county magistrate, and led the execution of the search warrant. The involvement of the Postal Inspectors was tenuous by comparison, and appears to have occurred more on account of the location of the alleged drug activity than because of appellant's status as an agency employee. Accordingly, the Commission finds that this complaint fails to state a claim, and should be dismissed. Issue 2 -- Reassignment to Lower-Level Position In order to establish a prima facie case of disability discrimination, appellant must prove, by a preponderance of the evidence, that he was treated differently than individuals not within his protected group, or that the agency failed to make a needed reasonable accommodation, resulting in adverse treatment of appellant. See Sisson v. Helms, 751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985). The agency does not contest that appellant is a "qualified individual with disability," and therefore entitled to the protection of the Rehabilitation Act; in other words, that appellant has an impairment which substantially limits one or more of his major life activities, but nonetheless is capable of performing the essential functions of his position either with or without a reasonable accommodation. See 29 C.F.R. §§ 1614.203(a)(1), (3); 29 C.F.R. § 1614.203(a)(6). Accordingly, the Commission may proceed directly to the question of whether the agency discriminated against appellant. The facts of the case do not present an issue of reasonable accommodation. The Commission has previously found that the agency was reasonably accommodating appellant's condition by placing him in a day-shift position and allowing him a temporary schedule change during winter months so that he would not have to work after dark. See Bradley v. U.S. Postal Service, EEOC Appeal No. 01931834 (October 6, 1993). Appellant has produced no evidence to show a change in circumstances warranting a review of whether the agency is reasonably accommodating his disability. There remains the question, however, of whether the appellant has been subjected to disparate treatment on account of his disability. In any proceeding, either administrative or judicial, involving an allegation of discrimination, it is the burden of the complainant, appellant herein, to initially establish that there is some substance to his or her allegation. In order to accomplish this burden the complainant must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). This means that the complainant must present a body of evidence such that, were it not rebutted, the trier of fact could conclude that unlawful discrimination did occur. The burden then shifts to the agency to articulate a legitimate, non-discriminatory explanation for its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, the agency need only produce evidence sufficient "to allow the trier of fact rationally to conclude" that the agency's action was not based on unlawful discrimination. Id. at 257. Once the agency has articulated such a reason, the question becomes whether the proffered explanation was the true reason for the agency's action, or merely a pretext for discrimination. St. Mary's Honor Center v. Hicks, ___ U.S. ___, ___, 113 S. Ct. 2742, 2749 (1993). Although the burden of production, in other words, "going forward," may shift, the burden of persuasion, by a preponderance of the evidence, remains at all times on the complainant. Burdine, 450 U.S. at 256. The record contains no evidence bearing on the treatment of similarly situated, non-disabled employees. The Commission therefore will assume for the sake of argument that appellant has established a prima facie case of disability discrimination. The burden is now upon the agency to articulate a legitimate, non-discriminatory explanation for its actions. The record reflects that appellant remained off work rather than accept the assignment, with accommodation, which he had been offered. Given that the agency was already accommodating appellant, and that there were no PS-6 Clerks on the 7:00 a.m. to 3:30 p.m. shift, agency officials informed appellant, via the Union Steward, that he would have to request a down-grade to PS-5 in order to return to his preferred work hours. This explanation is sufficient to meet the agency's burden. The burden now shifts back to appellant to demonstrate that the agency's proffered explanation is not the true reason for its actions, but is merely a pretext for unlawful discrimination. Appellant may demonstrate pretext by producing evidence sufficient to establish that agency officials more likely than not were motivated by discriminatory animus. St. Mary's Honor Center v. Hicks, ___ U.S. at ___, 113 S.Ct. at 2749. Appellant, however, has not met this burden. Appellant maintains that he was "forced" to request what appears to be a voluntary down-grade. However, appellant has produced no evidence that he was, in fact, forced to do so. Appellant declined a work assignment which met the agency's obligation to accommodate him. He then filed a grievance alleging that he was being denied the opportunity to work. Rather than pursue the grievance to arbitration, appellant elected to request a down-grade in order to obtain a work schedule with his preferred hours. Nothing in the record establishes, or even suggests, that the agency acted as it did toward appellant out of discriminatory animus. CONCLUSION Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final agency decision and find that appellant has failed to prove, by a preponderance of the evidence, that he was discriminated against because of race, sex, mental disability, and reprisal, as alleged. RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. § 1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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). RIGHT TO FILE A CIVIL ACTION (S0993) It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1092) 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: Ronnie Blumenthal Director Office of Federal Operations September 18, 1996 Footnotes 1. Appellant filed two complaints which were consolidated for an administrative hearing. The agency subsequently severed the complaints and issued a separate final decision on each one. In the interest of judicial economy, appellant's complaints have been reconsolidated on appeal.