0120080886
09-16-2009
Alton D. McLemore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alton D. McLemore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080886
Hearing No. 550-2007-00388X
Agency No. 1F944000407
DECISION
On December 5, 2007, complainant filed an appeal from the agency's October
31, 2007 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission affirms the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a mail processing clerk at the agency's North Bay Processing and
Distribution facility in Petaluma, California. On December 22, 2006,
the agency placed complainant on emergency off-duty status without pay
after two witnesses alleged that complainant pushed a hamper that struck
a fellow employee. On January 11, 2007, the agency issued a notice of
proposed removal for unacceptable conduct relating to the December 22,
2006 incident.
On April 6, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (African American), sex
(male), religion (Baptist), color (black), age (forty-eight years old),
and reprisal for prior protected EEO activity when:
1. on December 22, 2006, the agency placed complainant on off-duty
status without pay; and
2. on January 11, 2007, the agency issued to complainant a notice
of proposed removal for unacceptable conduct.
On April 19, 2007, the agency accepted claim 1 for investigation;
however, it dismissed claim 2 because the removal action was held in
abeyance after the parties signed a Last Chance Agreement, which allowed
complainant to continue to work.
At the conclusion of the investigation, complainant was provided 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. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over the complainant's
objections, issued a decision without a hearing on October 25, 2007.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in issuing a
decision without a hearing because (1) the agency and AJ incorrectly
framed the issues raised in his complaint, which included a claim of
a continuing violation of harassment/hostile work environment, and (2)
the material facts were in dispute and complainant established that he
was discriminated against on the bases alleged.
STANDARD OF REVIEW
On appeal, where no hearing has been held, the Commission reviews de novo
the AJ's legal and factual conclusions, and the agency's final order
adopting them. 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 EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo").
ANALYSIS AND FINDINGS
A. Framing of Issues
In his brief on appeal, complainant first contends that the agency and
AJ incorrectly framed the issues raised in his complaint. Specifically,
complainant argues that he had filed his formal complaint under a theory
of a continuing violation of harassment/hostile work environment in
which he was subjected to "a series of events that purportedly constitute
harassment."
The record shows that complainant alleged in his formal complaint that
he was discriminated against when the agency placed complainant on
off-duty status without pay and issued the proposed notice of removal.
Under the remedies section of the formal complaint, complainant listed
damages from various past incidents involving coworkers or managers for
which complainant sought to be compensated.
There is nothing in the record to indicate that complainant requested
leave to amend his complaint to include a claim of a continuing violation
of harassment/hostile work environment after the agency issued its
acceptance of claim 1 and dismissal of claim 2. The Commission finds
that complainant did not allege a claim of a continuing violation of
harassment/hostile work environment.
B. Procedural Dismissal
Upon review of the record, the Commission affirms the dismissal of
complainant's claim that he was discriminated against when the agency
issued a notice proposed removal on January 11, 2007. That claim has
been settled. The record shows that the parties signed a Last Chance
Agreement on February 7, 2007. The agreement held the removal action in
abeyance for one year, during which time complainant agreed not to commit
any similar infractions. Upon successful completion of the one-year
term, the agency agreed to remove the notice of proposed removal from
complainant's record. In return, complainant agreed to withdraw any
appeals relating to the removal action, including those involving the
EEO process. There is no evidence in the record to indicate that this
agreement was violated.
C. AJ's Issuance of Decision Without a Hearing
The Commission must determine whether the AJ appropriately issued a
decision without a hearing on this record. The Commission's regulations
allow an AJ to issue a decision without a hearing when the AJ 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. Department of Defense, 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).
To prevail in a disparate treatment claim, 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 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 United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
In finding no discrimination, the AJ relied on the affidavits of a
supervisor who witnessed the incident on December 22, 2006, and the acting
manager of distribution operations, who placed complainant on off-duty
status without pay on December 22, 2006. The supervisor averred that
he saw complainant push a hamper into another employee. The supervisor
reported this to the acting manager. The acting manager averred that
on December 22, 2006, he received a telephone call from the supervisor,
who told him that complainant had rammed another employee with a hamper.
When the acting manager arrived, he saw that complainant was in a
heated argument with the supervisor. According to the acting manager,
the supervisor informed him that the supervisor had told complainant
to leave the postal facility because he had seen complainant commit a
premeditated act. The acting manager averred that he told the supervisor
to go to the office, after which complainant became argumentative and
did not try to explain his actions. The acting manager attested that
he instructed complainant to leave the premises, and told him that he
would receive a letter explaining his status.
In his affidavit, complainant averred that he was pushing his hamper
behind the employee in question when the employee slowed down as if he
was trying to allow complainant to hit him. According to complainant,
he avoided making any contact with the employee, but the employee
nevertheless informed the supervisor that complainant had tried to hit
him.
The Commission finds that the AJ did not err in issuing a decision without
a hearing because there was no genuine issue of material fact in dispute.
It is undisputed that the acting manager's stated reason for placing
complainant in off-duty without pay status was due to the witnesses'
statement about complainant's conduct on December 22, 2006. Although
complainant disputes the veracity of those statements, complainant does
not dispute that the statements were made, or that the acting manager
acted on those statements. In an attempt to show pretext, complainant
avers that the reason the acting manager placed him in off-duty status
was to have complainant "out of the way to bring up employees to take my
job." However, complainant presents no evidence to support this claim.
Therefore, the Commission finds that the AJ did not err in issuing a
decision without a hearing, finding that complainant failed to show that
he was discriminated against on the bases alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission affirms
the agency's final order, finding that complainant failed to establish
discrimination on the bases alleged.
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 16, 2009
Date
2
0120080886
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120080886