0120101602
06-13-2012
Bobby Garnett, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Bobby Garnett,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120101602
Hearing No. 470-2009-00149X
Agency No. 1C-401-0040-08
DECISION
Complainant filed an appeal from the Agency's February 11, 2010 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. 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 Louisville Processing and Distribution Center facility in Louisville, Kentucky.1 On October 31, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (black), age (50), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. On various dates, Complainant was forced to work alone, yelled at by Management, false accusations were made against him, and he was verbally abused;
2. On August 2, 2008, Complainant was issued a No Time Off Letter (NTOL) Letter of Warning #1;
3. On August 20, 20082, Complainant was issued an NTOL Letter of Warning #2 (in lieu of a 7-Day Suspension); and
4. Complainant was forced to work the Labor Day Holiday after his name was forged on the sign-up sheet.
Complainant also alleged discrimination based on race (African-American), color (black), sex (male), age (50), and in reprisal for prior EEO activity, when:
5. On November 20, 2008, Complainant was issued an NTOL Letter of Warning #3 (in lieu of a 14 Day-Suspension).
Complainant alleged discrimination based on race (African-American), disability (unspecified) and in retaliation for prior EEO activity when:
6. On or about January 14, 2009, Complainant was placed in an off-duty status.3
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 EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections the AJ assigned to the case granted the Agency's August 13, 2009 motion for a decision without a hearing and issued her Decision without a hearing on February 4, 2010.
In her Decision, the AJ found that the material facts were not in dispute and that no hearing was necessary to resolve any factual disputes. Specifically, with respect to claim (1), the AJ assumed that Complainant had established a prima facie case of discrimination based on race, color, age, and reprisal when Complainant was instructed to work alone. The AJ found no dispute that Complainant has been assigned to a letter sequencing machine by himself. The AJ also found no evidence that the explanation provided by the Agency was a pretext. S1, Complainant's supervisor explained that the Agency was short staffed at the time and that Complainant and his co-workers had all been instructed to work alone at some point. The AJ found no evidence that Complainant's race, color, age, or prior EEO activity played any role in S1's decision to assign Complainant to work on a machine by himself.
Regarding claim (2) (NTOL #1), the AJ found no dispute that Complainant had failed to process any mail on the date indicated in the written discipline, despite being given instructions to process mail. The AJ found no evidence that this discipline was for unsatisfactory performance and improper conduct. The AJ found no dispute that Complainant became belligerent when questioned about his failure to process mail and that this conduct led to the issuance of the discipline described, rather than any regard for Complainant's protected bases.
Regarding claim (3), the AJ found that the Agency's NOTL #2 was issued to Complainant to address excessive unscheduled absences. The AJ found no dispute that Complainant had been absent on the dates identified in the written discipline and no dispute that the letter was issued immediately after Complainant had taken 80 hours of unscheduled leave. The AJ found the evidence left no room for Complainant to show at a hearing that the timing of the NTOL #2 was suspicious or in reprisal for Complainant's prior protected activity. The AJ found no evidence that the absences documented by S1 in the discipline did not occur as articulated, nor any evidence that S1 treated any employees better than Complainant was treated. On the contrary, the AJ noted that S1 had issued similar discipline to other employees who had attendance issues similar to Complainant. Those employees, the AJ observed, included employees whose ages S1 did not know and those who were outside of Complainant's protected groups.
With respect to claim (4) (work on Labor Day), the AJ assumed, for purposes of her Decision, that Complainant's name was indeed forged on the sign-up sheet for work on the Labor Day holiday, that Complainant was scheduled to work on Labor Day because his name was on the sign-up sheet, and that the Agency refused to take Complainant's name off of the schedule. Nevertheless, the AJ found that Complainant presented no evidence that an Agency official forged Complainant's name, and in any event, Complainant did not work the identified holiday and was not subjected to any action because of it. The AJ considered that the absence was noted in discipline issued to Complainant some time later (claim (5)), but that discipline was based upon an additional 200 hours of documented unscheduled leave. Accordingly, the AJ found that claim (4) did not describe any loss or harm to Complainant and therefore failed to state a claim. Insofar as claim (4) was also based upon reprisal, the AJ found no evidence that the Agency was responsible for the alleged forgery and no evidence to support Complainant's claim that the timing of his being scheduled to work was in retaliation for his prior protected activity. On the contrary, the AJ noted that Complainant was placed on the schedule in response to his name appearing on the volunteer signup sheet. The AJ found that Complainant failed to present any evidence that the Agency's explanation was a pretext or false or contrary to the Agency's actions in similar circumstances involving employees not in Complainant's protected groups whose names appeared on the signup sheet and who were scheduled to work.
Regarding claim (5) (NTOL #3), the AJ considered that the third written discipline Complainant identified in his complaint was issued to him, citing a pattern of unscheduled absences, overall unsatisfactory attendance, and failure to follow official instructions. The AJ found that Complainant failed to establish a prima facie of discrimination regarding this claim on any basis because Complainant presented no evidence that other employees were treated more favorably under similar circumstances. The AJ further found that Complainant's dispute regarding the Labor Day signup sheet is insufficient to warrant a hearing on claim (5) given that Complainant was also charged with an additional 200 hours of unscheduled leave (at least) as the Agency's reasons for issuing the written discipline. The AJ noted that in his affidavit, Complainant failed to advance any argument regarding how his race, color, sex, or age motivated the Agency's actions described in claim (5).
In claim (6), the AJ noted that the Agency placed Complainant off duty when Complainant reported to work and appeared to be intoxicated. The AJ assumed, without so finding, that Complainant had a disability, but found that Complainant did not allege that he requested an accommodation that was denied and that he did not allege that he was assigned to work outside of his medical restrictions. The AJ found that supervisor S2 observed that Complainant smelled of alcohol, that his eyes were red and glassy; and that Complainant's speech was slurred. The AJ observed that Complainant was sent for a fitness for duty examination and that his blood alcohol was measured at 0.148. The AJ considered Complainant's contention that the machine used to measure Complainant's blood alcohol at a local hospital was not functioning properly and had not been calibrated. The AJ found that Complainant presented no evidence to corroborate his claim and no evidence that the Agency's reasons for placing him in off-duty status were unbelievable.
The AJ concluded that after resolving every reasonable inference in Complainant's favor, Complainant had failed to establish that he was discriminated against as alleged on any basis. 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.
ANALYSIS AND FINDINGS
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).
In the instant case, we find the AJ properly issued her decision without a hearing. We find the material facts are not in dispute. Specifically, we find no dispute that Complainant was assigned to work by himself on various dates, that he was unhappy that he was assigned to work alone, and that he expressed this displeasure to management. We find no dispute that other employees were also assigned to work alone by the same supervisor. We find Complainant failed to present any evidence that other employees, not in his protected groups, were treated preferentially with respect to claim (1).
We further find, as did the AJ, that Complainant does not deny that he failed to process mail as documented in the letter of warning he received (claim (2)). We find that Complainant's belief that his supervisor was aware of his EEO activity by "word of mouth" is unsupported by any evidence in the record. We find that Complainant presented no evidence that his race, color, age, or prior EEO activity played any role in the Agency's decision to issue the written discipline he received for his performance and conduct identified in claim (2).
With respect to discipline issued to Complainant for his attendance issues, (claims (3) and (5), we find that Complainant does not deny that he incurred the unscheduled absences cited by the Agency. We also find that Complainant has not identified any other employees who were treated better than he was under similar circumstances. Similarly, we find that Complainant failed to identify in the course of the investigation of the complaint any employees not in his protected groups who were not placed in off-duty status after reporting for work in an intoxicated state. On appeal, Complainant identifies additional employees he believes were allowed to apply for disability retirement in lieu of removal. We assume without finding, as did the AJ, that Complainant is an individual with a disability. We note that the claim in the instant complaint (claim (6), is confined to Complainant's placement on off-duty status. Complainant does not allege that he was denied an accommodation. The instant complaint does not extend to the Agency's actions involving his ultimate removal from the Agency. We find that Complainant did not present evidence that the Agency's reasons for placing him off-duty were a pretext to mask discrimination. Complainant does not deny that he had consumed alcohol prior to the time he reported for work and does not deny that he was impaired (by medications he had taken) at the time he was directed by the Agency to report to the local hospital for a fitness for duty examination. We find no evidence that Complainant's race, disability or prior EEO activity motivated the Agency's actions.
CONCLUSION
We AFFIRM the Agency's Final Decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
June 13, 2012
__________________
Date
1 The record on appeal shows that Complainant's employment with the Postal Service was terminated effective March 14, 2009, after the Postal Service concluded that Complainant was intoxicated at work on January 13, 2009.
2 The date of this document is identified (in error) as being issued on August 26, 2008, on some record documents.
3 The AJ found that Complainant amended his complaint twice to include claims (5) and (6).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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