0120073883
07-17-2009
Devendra K. Jain, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (N.Y. Metro Area), Agency.
Devendra K. Jain,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(N.Y. Metro Area),
Agency.
Appeal No. 0120073883
Hearing No. 520-2007-00210X
Agency No. 4A-100-0161-06
DECISION
On August 24, 2007, complainant filed an appeal from the agency's July
20, 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. 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.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's
issuance of a decision without a hearing was appropriate; and (2)
whether complainant established that he was subjected to a hostile work
environment and discriminated against on the bases of national origin
(Indian), religion (Jain/Hindu), and in reprisal for prior protected
EEO activity arising under Title VI.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Supervisor, Customer Services, at the agency's James A. Farley
Station in New York, New York. Complainant filed an EEO complaint,
dated August 18, 2006, alleging that he was subjected to a hostile work
environment and discriminated against on the bases of national origin
(Indian), religion (Jain/Hindu), and in reprisal for prior protected
EEO activity arising under Title VII when:
(1) He was not paid overtime for extra time worked on April 14, 2006,
May 16, 2006, May 20, 2006, May 21, 2006, and May 26, 2006;
(2) He was denied the opportunity to work on July 4, 2006;
(3) He was issued a Letter of Warning on June 23, 2006; and
(4) In September 2006, he was issued a Letter of Warning in Lieu of a
Seven Day Suspension.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a 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 July 10, 2007. The AJ's decision found that complainant
failed to establish that he was subjected to disparate treatment or
harassment. 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 argues that the AJ erred in issuing a decision
without a hearing because there are genuine issues of material fact
in dispute. Complainant argues that the record establishes that he
was subjected to discrimination and reiterates arguments made below.
In response, the agency argues that the appeal should be dismissed as
untimely and urges the Commission to affirm its final decision.
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 first address the agency's claim that the appeal should be dismissed
as untimely. EEOC regulations provide that the Commission shall dismiss
an appeal from a final agency decision as untimely if the appeal is
not filed within thirty (30) days of receipt of the agency's dismissal,
final action, or decision. See 29 C.F.R. � 1614.402(a); 29 C.F.R. �
1614.403(c). A review of the record reveals that complainant received
a copy of the agency's final decision on July 26, 2007. Complainant
subsequently filed the instant appeal on August 24, 2007, which was
within the 30 day limitation period. Therefore, we deem complainant's
appeal timely.
We must next 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).
After a careful review of the record, the Commission finds that the
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.
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). Complainant must initially
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). 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 established a prima facie case
of discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim (1),
complainant's supervisor, the Tour Superintendent Postal Operations,
submitted a statement into the record indicating that complainant was not
given overtime pay on the aforementioned dates because overtime was "being
paid only when supervising and not closing out and counting and recounting
money." The supervisor indicated that complainant had previously been
granted overtime pay, but on those dates he was improperly attempting to
use overtime "for paperwork and inefficiencies." With respect to claim
(2), the supervisor stated that complainant was not allowed to work on
the Fourth of July holiday because the supervisors work holidays on a
rotational basis, complainant was not scheduled to work on that date,
and there was no need for an additional supervisor. The supervisor
noted that complainant had been assigned to work on other holidays.
Regarding claim (3), complainant's supervisor stated that he was issued a
Letter of Warning for sleeping while on the job and maintaining an unkempt
appearance. The supervisor stated that two employees submitted statements
describing incidents where complainant was found sleeping on the job.
In claim (4), complainant's supervisor and two other supervisors stated
in the record that he was issued a Letter of Warning in Lieu of a Time
Off Seven Day Suspension for failure to perform his supervisory duties.
Specifically, the officials stated that complainant was responsible
for processing all of the mail that was offloaded from trailers on
September 4, 2006. However, one trailer that was parked in the bay
during complainant's tour was found sealed and full of undelivered mail
on September 5, 2006. Complainant was held accountable for the delay
in delivery.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. We find that complainant failed to provide any evidence of
pretext in the record. Moreover, we find that the record is devoid of
any evidence that the agency's actions were motivated by discriminatory
animus towards complainant's national origin, religion, or in reprisal
for his prior protected EEO activity.
Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or 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., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). To establish a prima facie case of harassment, complainant must
show that: (1) he is a member of a statutorily protected class and/or
was engaged in prior EEO activity; (2) he was subjected to unwelcome
verbal or physical conduct related to his membership in that class
and/or his prior EEO activity; (3) the harassment complained of was
based on his membership in that class and/or his prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to 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).
Complainant alleged that he was subjected to harassment when management
officials allegedly shouted at him both in front of employees and
behind closed doors. Complainant also alleged that on April 18,
2006, the Manager, Customer Services told complainant that he would
"send [complainant] back where [he] came from."1 Upon review, the
Commission concurs with the AJ's determination that complainant has
failed to establish a prima facie case of harassment. The Commission
has repeatedly found that claims of a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996). In viewing the events as a whole, complainant has not
established that the incidents in question had the purpose or effect
of unreasonably interfering with complainant's work performance and/or
creating a hostile work environment.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant also failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus towards him. We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, the agency's final
order is AFFIRMED.
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
_______07/17/09___________
Date
1 The EEO Investigator noted in the record that the Manager, Customer
Services was on extended leave during the investigation and did not
respond to an affidavit request.
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0120073883
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073883