Dick M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jan 14, 2016

0120141630 (E.E.O.C. Jan. 14, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dick M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120141630
Hearing No. 410-2013-00392X
Agency No. 4K300002913

DECISION

Complainant filed an appeal from the Agency’s March 7, 2014 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 U.S. Equal Employment Opportunity Commission (Commission or EEOC) deems the
appeal timely and accepts it 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 Carrier
Technician, at the Howell Mill Station in Atlanta, Georgia. On December 31, 2012,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (Caucasian) and sex (male) when on November 13, 2012, he became aware that a
female coworker was not issued discipline for committing the same infraction for which he
received discipline.

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 timely requested a hearing. On January 15, 2014,

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is
published to non-parties and the Commission’s website.
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the Agency filed a Motion for Summary Judgment which Complainant did not oppose. On
February 26, 2014, the AJ granted the Agency’s motion and found that the record did not
support a finding of discrimination. 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

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative
judge’s determination to issue a decision without a hearing, and the decision itself, will both 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 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. Dep’t of
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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).

The undisputed record shows that Complainant was on the Overtime Desired List (OTDL) and
was scheduled to work on his non-scheduled day. Contract provisions require him to work
overtime if he is on the OTDL. Complainant failed to report on his scheduled overtime day.
Complainant also failed to notify management that he would not be in attendance. In doing so,
Complainant violated Agency attendance policies for which disciplinary action is authorized.
As a consequence, management issued Complainant a Letter of Warning (LOW).

Complainant names two African-American females (C1 and C2), as comparators. We agree
with the Agency in concluding that C1 is not a proper comparator because she was not on the
OTDL and therefore, was subject to different requirements than Complainant. The undisputed
record shows that C2 was treated the same as Complainant when she received a LOW for
failure to report for duty as scheduled under similar circumstances as Complainant. We note
that Complainant failed to present evidence of pretext or discriminatory animus on the part of
any responsible management official. Accordingly, we agree with the AJ and conclude that the
evidence does not establish the existence of a genuine dispute of material fact necessitating a
hearing in this matter.

CONCLUSION

Therefore, based on a thorough review of the record, we AFFIRM the Agency’s final decision
which adopts the AJ’s finding of no discrimination.2

2 We note that Complainant did not raise any argument on appeal.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 tends 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
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costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

January 14, 2016
Date