0120053794
04-27-2007
Curtis Flores,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200537941
Hearing No. 370-2004-00457X
Agency No. 4F945011103
DECISION
On April 27, 2005, complainant filed an appeal from the agency's March
16, 2005, 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 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.
ISSUES PRESENTED
Whether complainant was discriminated against on the bases of race
(African-American), disability (stress), and reprisal/hostile work
environment for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when: (1) on February 3, 2003, he was issued a
Notice of Suspension; (2) on March 12, 2003, false accusations were made
regarding the theft of a supervisor's vehicle; (3) false accusations
were made concerning his work performance; and (4) he was accused of
improperly using overtime.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Part-Time Flexible City Carrier, PS-06, at the agency's Union City Post
Office in Union City, California. The record reveals that on February
3, 2003, complainant was issued a Notice of Suspension for alleged
failure to follow instructions. Specifically, he was disciplined for
failing to report an accident. The Notice was ultimately reduced to an
official discussion during the grievance process. On March 12, 2003,
complainant was questioned regarding the theft of a supervisor's car
when complainant asked about the car prior to it being public knowledge
that it had been stolen. The Postmaster solicited the Union Vice
President to ask complainant how he knew about the theft of the vehicle.
Complainant received no disciplinary action or any other type of action
regarding this incident. Complainant also maintained that his supervisor
complained about his work indicating that he was slow and accusing him
of misusing overtime. Complainant filed an EEO complaint regarding
these matters on May 14, 2003.
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 issued a decision without
a hearing on February 10, 2005. 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.
The AJ found that with respect to issue (1), complainant's claim was
moot, because the Notice of Suspension was reduced to a discussion and
as such, complainant was not an aggrieved person entitled to relief.
The AJ also found that complainant had failed to establish a prima facie
case of race and reprisal discrimination on this issue because he failed
to offer similarly situated employees who were treated more favorably
than he was under similar circumstances. Further, the AJ held that
this incident was not sufficiently severe or pervasive to constitute a
hostile work environment.
With respect to issue (2), being asked about the supervisor's car,
the AJ found that complainant failed to show that he suffered an
adverse employment action regarding this issue. The AJ indicated that
complainant failed to show a serious and material change in the terms,
conditions, or privileges of employment. Additionally, the AJ found that
complainant failed to establish a prima facie case of race and reprisal
discrimination because he offered no similarly situated employees who
were treated more favorably than he was under similar circumstances.
Finally he found that this incident was not sufficiently severe or
pervasive to constitute a hostile work environment.
Regarding issues (3), work performance, and (4) overtime use, the AJ
found that complainant did not show that he suffered an adverse employment
action, as he did not receive any disciplinary action for these incidents.
The AJ also found that complainant failed to establish a prima facie
case of race and reprisal discrimination because he offered no similarly
situated employees who were treated more favorably than he was under
similar circumstances. Further, the AJ found that these incidents
were not sufficiently severe or pervasive to constitute a hostile work
environment. Similarly, the AJ found that complainant's disability claim
also failed. The AJ indicated that complainant failed to show that he was
a qualified individual with a disability. The AJ found that complainant
had offered no medical documentation that his alleged physical disability
substantially limited one or more major life activities, nor was there
any evidence that the agency regarded him as disabled. Additionally,
the AJ found that complainant's contention of reprisal failed because
he was only able to prove the first prong of his four prong burden of
showing reprisal. Specifically, complainant established that he engaged
in prior EEO activity but was unable to show that his supervisors were
aware of his prior activity, or that he suffered an adverse employment
action, or that a casual connection existed between the prior activity
and the incidents in question.
Finally, the AJ found that even assuming arguendo that complainant
established a prima facie case of race, disability, reprisal or a hostile
work environment discrimination, the agency had articulated legitimate
nondiscriminatory reasons for its actions, namely, that complainant failed
to report an accident and his other allegations did not constitute an
adverse employment action. The AJ concluded that complainant failed to
show that the agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant contends that he has been subjected to continuing harassment
and a hostile work environment since 1994 but especially in August
2000, when he began his career appointment as a Part Time Flexible
Letter Carrier. Complainant indicates that his involvement as a union
representative largely contributed to his hostile work environment claim.
Complainant contends that the agency did not engage in pre-complaint
processing and simply defined his claims without ever discussing them with
him. Complainant states that the agency has ignored the pattern aspect
of his claim. Complainant maintains that summary judgment should not
have been granted in the case because genuine factual disputes exist.
ANALYSIS AND FINDINGS
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 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"). 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").
We must first 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. 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 such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment/hostile work environment based on race,
disability, or reprisal, complainant must show that: (1) he is a member
of the statutorily protected class; (2) he was subjected to harassment in
the form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
After a careful review of the record, the Commission finds that that
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists such that a hearing on the merits is warranted.
Specifically, the Commission finds that the AJ made certain that: the
investigative record was adequately developed; there were no genuine
issues of material fact; and there were no findings of fact made by
weighing conflicting evidence or assessing witness credibility.
The Commission agrees that even if complainant established a prima
facie case of race, disability, reprisal or a hostile work environment
discrimination, the agency articulated legitimate nondiscriminatory
reasons for its actions, namely, that complainant failed to immediately
report an accident where he was injured, and his other allegations did
not constitute adverse employment actions because no action was taken
by the agency when he was questioned about the supervisor's car, and
comments were made about his work performance and overtime. We find
that complainant failed to show that the agency's reasons were pretext
for discrimination.
Regarding complainant's contentions on appeal, that his complaint was
not properly framed and that the agency ignored the pattern aspect of his
claim, the Commission finds that, even if his allegations were considered
together, they still do not rise to the level of harassment. When we
determine whether an incident or group of incidents, as is the case here,
is actionable, we look at the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes
with an employees work performance. See Harris v. Forklift, supra.
In the case at hand, while it certainly must have been difficult to be
questioned about the supervisor's stolen car and to be given negative
comments about his work product and overtime usage, the Commission finds
that these incidents are not severe or pervasive enough to constitute a
hostile work environment. We find they simply do not rise to that level
where they would interfere with complainant's work performance. Further,
while complainant contends that he has been subjected to hostile behavior
since 1994, he has not provided any evidence to support his contention.
Accordingly, the Commission finds that a finding of no discrimination
is supported by the record. The agency's order is hereby affirmed.
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
___04/27/07_______________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
??
??
??
??
7
0120053794
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036