0120091687
06-21-2010
Danny Griggs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Danny Griggs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120091687
Hearing No. 450-2008-00268X
Agency No. 1G754003808
DECISION
On March 3, 2009, Complainant filed an appeal from the Agency's January
28, 2009 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
1. Whether the EEOC Administrative Judge (AJ) properly issued a decision
without a hearing.
2. Whether the AJ properly found that Complainant was not subjected to
race or disability discrimination when the Agency issued him a Notice
of Removal effective February 3, 2008.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Processing clerk at Coppell, Texas. The record reveals that
the Agency issued a Notice of Removal dated January 2, 2008, in which
it stated that Complainant was charged with unsatisfactory attendance.
The Notice cited six purported instances of Complainant's unscheduled
absences from September 12, 2007 to December 14, 2007. The absences
were listed as SL/SWOP (Sick Leave/ Sick without Pay), SL (Sick Leave),
AWOL (Absent without Leave), and LWOP/SWOP/AWOL.
On February 15, 2008, Complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (Black) and disability
when, on January 5, 2008, he received a Notice of Removal effective
February 3, 2008.1 In an investigative affidavit, Complainant stated that
the Agency issued him a Notice of Removal for unsatisfactory attendance.
Complainant further stated that he believed that employees outside
his protected class were treated more favorably, but Complainant did
not identify the employees. The Supervisor of Distribution Operations
(Supervisor) stated that Complainant was issued the Notice of Removal
because he failed to be in regular attendance. She further stated that
Complainant continued to call in absent although he had been warned that
his absences were unacceptable. A Manager of Distribution Operations
stated that Complainant was issued the Notice of Removal strictly for
attendance. He stated that the Complainant's race was never a factor in
the decision to concur with the Notice.
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 AJ. Complainant timely requested a hearing.
On October 23, 2008, the Agency filed a Memorandum of Law in Support
of a Decision without a Hearing. Complainant did not respond to the
Agency's Memorandum. On January 22, 2009, the AJ issued a decision
without a hearing in which she found that Complainant was not subjected
to unlawful discrimination.
The AJ's Decision
In the decision, the AJ found that Complainant failed to prove that he
was an individual with a disability or establish a prima facie inference
of race or disability discrimination. The AJ further found that the
Agency provided a legitimate, non-discriminatory reason for its actions
when it stated that Complainant was issued the Notice of Removal because
he failed to report to work and maintain regular attendance. The AJ
concluded that Complainant failed to show that the Agency's explanations
were pretext for unlawful discrimination. The Agency subsequently issued
a final order fully adopting the AJ's finding.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly issued a decision
without a hearing in favor of the Agency. Complainant maintains that the
removal notice claimed that he failed to report to work on six instances,
but he indicated that four of the instances were covered by the Family
Medical Leave Act (FMLA). Complainant further stated that he submitted
documentation to the FMLA Coordinator's Office for FMLA from October 15
through November 19, 2007, which was approved. Complainant contends that
the Supervisor was informed of his approved leave under FMLA on December
6, 2008, but she nonetheless issued Complainant the Notice of Removal.
The Agency did not submit any new arguments on appeal but relies upon
its arguments set forth in its motion for a decision without a hearing.
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").
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).
We find that the AJ properly issued a decision without a hearing because
Complainant, at the time the AJ decision was issued, failed to show that
a genuine issue of material fact or credibility existed.
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).
Assuming arguendo that Complainant is an individual with a disability and
established a prima facie case of unlawful discrimination, we nonetheless
find that the Agency provided legitimate, non-discriminatory reasons for
its actions, as detailed above. On appeal, Complainant contends that
the absences for which he was issued the Notice of Removal were covered
by approved leave under the FMLA. However, we note that Complainant
failed to present this argument during the investigation or before the
AJ. During the investigation, Complainant provided very generalized,
vague, and brief affidavit responses and failed to raise the issue of
approved leave under the FMLA. Further, Complainant did not respond to
the Agency's motion for a decision without a hearing and did not file a
Pre-Hearing Conference Report or supplement the record with any additional
information. Complainant had ample opportunity to make the arguments
he introduces on appeal during the investigation and before the AJ, but
failed to do so. He has not shown that the evidence he presents on appeal
was not reasonably available prior to or during the investigation. EEO
Management Directive for 29 C.F.R. Part 1614, Ch. 9 � VI. A.3. (1999).
Therefore, we decline to consider these new arguments on appeal.
We find that Complainant failed to provide any evidence to the AJ
from which it could be concluded that the Agency's non-discriminatory
explanations were a pretext for unlawful discrimination. Thus, we find
that the AJ properly found no discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the Agency's final
order, because the Administrative Judge's issuance of a decision
without a hearing was appropriate, and a preponderance of the
record evidence does not establish that discrimination occurred.
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
____6/21/10______________
Date
1 We note that Complainant was reinstated to his position pursuant to
a grievance decision.
??
??
??
??
2
0120091687
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091687