0120141601
09-16-2016
Alonso T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alonso T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120141601
Hearing No. 530-2011-00149X
Agency No. 4C080002111
DECISION
Complainant filed an appeal from the Agency's final order concerning 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., 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). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish that he was subjected to discrimination on the bases of race (African American), color (Black), disability, and reprisal for prior EEO activity when: on September 13, 2010, he was issued a Notice of Removal for improper conduct with an effective removal date of November 6, 2010.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Carrier at the Agency's Edgemoor Branch Post Office facility in Wilmington, Delaware. The following facts are set forth in the AJ's Decision:
The record reflects that Complainant filed a Department of Labor (DOL) Form CA-l, with the Agency notifying them that he sustained an on the job injury on December 21, 2009 when he slipped on ice near his truck. On December 22, 2009, Complainant submitted a DOL Form CA-17 Duty Status Report dated December 21, 2009, signed by his physician, indicating that he was incapable of performing any of his postal service duties. By letter dated December 21, 2009, Complainant informed the Agency that he was under the care of D1 from December 21, 2009 through December 28, 2009, and that he was unable to work.
On, or around, December 22, 2009, Complainant and met with his manager (S1) to discuss his situation. S1 offered Complainant work answering telephones while sitting, but Complainant declined this assignment stating that it was against his medical restrictions. Subsequently on December 23, 2009, S1 contacted the Office of the Inspector General (OIG) regarding Complainant's injury claim. S1 informed the OIG that a few days prior to reporting his injury, Complainant had been denied time off around the Christmas and New Year's holidays. S1 was of the opinion that the timing of the claimed injury was suspicious in light of the denial of time off, and he advised the OIG that he thought that an investigation was appropriate.
On December 29, 2009, Complainant submitted a DOL Form CA-17 which indicated that he was unable to perform any of the duties listed for any time during the work day. Complainant submitted CA-17 forms dated January 4, January 19 and February 2, 2010, and similar to the previous CA-17 forms he submitted, these forms each indicated that he could not perform any of his job duties for zero hours in the day. Complainant was paid sick and annual leave for the period of time he was out due to his injury. On February 16, 2010, Complainant submitted medical forms indicating that he was able to return to work with a daily two hour walking restriction. The Agency accommodated his medical restrictions so that Complainant's route was reduced by 1.5 hours and he returned to work.
The Office of Inspector General began an investigation into Complainant's claim for unemployment compensation, and by memorandum and report dated June 24, 2010, concluded that Complainant was employed at Securitas Security Services during the time period he represented that he was totally incapacitated from working for the Agency. The OIG report contained surveillance videos of Complainant engaged in activities in conflict with his represented medical restrictions. On August 9, 2010, an Agency Supervisor conducted a pre-disciplinary interview (PDI) with Complainant, and on September 13, 2010, the Agency Supervisor issued a Notice of Removal to Complainant based on the charge of improper conduct. Complainant's removal was effective, November 6, 2013.
On December 11, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of "Issue Presented" above. 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 Administrative Judge. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's March 11, 2013, motion for a decision without a hearing and issued a decision without a hearing on April 9, 2013. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
ANALYSIS AND FINDINGS
We must 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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion, supplemental motion, and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII or Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Assuming, arguendo, that Complainant is a qualified individual with a disability, pursuant to the Rehabilitation Act, and that he established a prima facie case of discrimination on the bases of race, color, disability, and reprisal, the AJ concluded that he did not show that the Agency's reasons for his removal were pretextual. We find that the Agency articulated legitimate, non-discriminatory reasons for the action it took, and that Complainant failed to demonstrate any conduct on the part of the Agency was based on discriminatory animus.
The record reflects that Complainant's manager (S1) was suspicious about his alleged workplace injury, which occurred only one day after Complainant's request for time off was disapproved. These suspicions led S1 to contact the Office of Inspector General (OIG), which launched an investigation. The OIG's report indicated that Complainant submitted medical documentation stating that he was unable to perform his duties as a Letter Carrier; that he was off from work due to injury and he received compensation while off duty. Additionally, the report revealed that while he was off from work, surveillance mechanisms observed him working at another job engaged in activities conflicting with his medical documentation. Employee and Labor Relations Manual (ELM) Section 513.11 provides in pertinent part that "[s]ick leave insures employees against loss of pay if they are incapacitated for the performance of duties because of illness, injury, pregnancy and confinement and medical exam or treatment." ELM Section 513.312 provides in pertinent part that "[a]n employee who is in sick leave status may not engage in any gainful employment unless prior approval has been granted by appropriate authority." There is no record of Complainant obtaining the necessary approvals to engage in gainful employment while being in sick leave status. Additionally, Complainant offers no evidence to refute the allegations against him. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate he was subjected to discrimination on the bases of race (African American), color (Black), disability, and reprisal for prior EEO activity when: on September 13, 2010 he was issued a Notice of Removal for improper conduct with an effective removal date of November 6, 2010.
The Agency's final order adopting the decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_9/16/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Commission notes that the initial complaint contained a second claim that on August 9, 2010 Complainant's supervisor conducted a Pre-Disciplinary Interview under false pretenses that is not the subject of the instant appeal. This claim was dismissed by the Agency as untimely.
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