Dominique N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 17, 20160120151316 (E.E.O.C. Nov. 17, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominique N.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120151316 Hearing No. 540-2011-00203X Agency No. 4E-852-0011-11 DECISION On March 2, 2015, Complainant filed an appeal from the Agency’s February 12, 2015, 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. 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 Transitional Employee (TE) Letter Carrier at the Agency’s Boulder Hills Station in Phoenix, AZ. On December 15, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and in reprisal for prior protected EEO activity when: (1) on June 19, 2010, his supervisor threatened him with a letter indicating his behavior was disruptive and insubordinate; his claims of discrimination were without merit; and his actions were grounds for termination; (2) on July 19, 2010, Management refused to provide him with medical attention, failed to complete an injury report, and he was denied the right to complete a PS Form CA-1; (3) on or about July 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. 0120151316 2 22, 2010, management refused to reveal why he was being investigated; (4) on or about July 22, 2010, management took him off the schedule; and (5) on September 23, 2010, he was terminated from his TE position. PROCEDURAL HISTORY Following the completion of the investigation, Complainant timely requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) on May 25, 2011. An Acknowledgment Order was issued by an AJ on June 24, 2011, after which Complainant requested to postpone the case because he was suffering from dyslexia and depression and wanted to seek counsel. A stay was granted; however, after several months Complainant failed to obtain counsel and the case proceeded. On October 31, 2011, the Agency filed a motion to compel Complainant to answer the Agency’s written discovery requests. On December 21, 2011, the Agency's motion to compel was granted and Complainant was ordered to provide written responses to the Agency's discovery by January 6, 2012. Complainant was also ordered to contact the Agency to schedule a deposition. On January 9, 2012, the Agency notified the AJ that it had not received the ordered responses to its written discovery and that it had been unable to reach Complainant to schedule a deposition as ordered. On February 1, 2012, the Agency filed a motion for sanctions for Complainant's failure to respond to the order compelling him to respond to discovery, as well as for his failure to properly respond to the order to show cause. In the motion, the Agency set forth how its efforts to contact Complainant had been thwarted by Complainant refusing to allow the Agency to use either the phone number or email address he had provided to the Agency. Complainant did not oppose the Agency’s motion. On February 15, 2012, while the motion for sanctions was pending, in accordance with the Acknowledgement Order, the Agency filed a motion for summary judgment (MSJ). Complainant did not oppose the MSJ. In July of 2013, the Agency filed a notice to submit for decision noting its summary judgment motion was unopposed and had been pending for more than a year. In May of 2014, the case was transferred to a new AJ (AJ2) in Denver, who issued an order requiring a joint statement from the parties. The Agency was unable to reach Complainant to prepare a joint statement and therefore filed an ex parte response setting forth its inability to reach Complainant and identifying the outstanding motions for sanctions and for a decision without a hearing, both of which remained unopposed. In July of 2014, the Agency received a request from AJ2 for copies of the motion for sanctions and for the MSJ. The Agency forwarded the motions. On July 29, 2014, AJ2 issued an order for a status conference on the case. Thereafter, the Agency was copied on an e-mail message from AJ2 to Complainant advising him his time to oppose summary judgment was "long passed," but inviting him to request additional time and explain why he had not previously responded. 0120151316 3 Complainant responded by pointing out that several documents were missing and demanding that they be sent to him without any further delay. The Agency responded the documents at issue had already been sent to Complainant "between two and four times already." The Agency also noted that it did not have at least one substantive pleading referenced in the exchanges between the EEOC and Complainant or the witness list he apparently submitted to the AJ in response to the order to show cause. This witness list was not disclosed to the Agency even after the Agency's motion for sanctions which specifically stated the Agency had not received any response to the show cause order. On August 12, 2014, Complainant submitted an objection to the MSJ, and objection to sanctions. During the status conference, Complainant stated that he did respond to the Agency's discovery in accordance with the order compelling his discovery. However, it turned out that the response he was referring to was the one sent prior to the AJ’s order compelling his discovery responses. On August 22, 2014, Complainant responded to the Agency's written discovery, but did not explain why he had failed to comply with the original order compelling him to respond no later than January 6, 2012. He also submitted his own motion for sanctions and for summary judgment; as well as a request for documents. The Agency objected to Complainant's pleadings and renewed its motions for sanctions and/or for summary judgment. On November 3, 2014, the AJ issued an order denying Complainant's motion for sanctions and for summary judgment, but not ruling on the Agency's motion for sanctions filed in early 2012. Complainant was allowed to resubmit his request for additional discovery with more information so the AJ could rule on it. On November 14, 2014, Complainant filed a response again seeking sanctions against the Agency. On January 30, 2015, AJ2, without ruling on or mentioning the Agency's motion for sanctions, issued a decision without a hearing finding no discrimination. CONTENTIONS ON APPEAL Complainant asserts on appeal that the investigation was not adequate. Specifically, he argues that the record fails to present evidence on the issue of whether the Agency was overstaffed and that what exists in the record indicates that the Agency has propounded two different explanations for his termination. Complainant also asserts that AJ2 failed to consider retaliation as the motivation behind his termination. The Agency argues that AJ2 abused his discretion by not ruling on the Agency's unopposed motion for sanctions and the failure to issue sanctions against Complainant. The Agency also asserts that the summary judgment decision was correct because the record fails to present sufficient evidence of pretext or discriminatory/retaliatory animus. 0120151316 4 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Upon review of the record, we agree with AJ2’s conclusion that the record does not warrant a hearing. We find the record was adequately developed and the record shows that Complainant was given ample opportunity to develop the record further but did not do so. We find that aside from Complainant’s bare uncorroborated assertions, the record is devoid of evidence that the Agency refused to provide him with medical attention, failed to complete an injury report, denied him the right to complete a PS Form CA-1, or refused to reveal why there was an investigation ongoing. We also disagree with Complainant’s assertions that the record contains sufficient evidence to establish that the Agency’s explanation for its decision not to renew Complainant’s TE appointment was a pretext for unlawful discrimination or retaliation. The evidence in the record shows that initially, management requested permission to terminate Complainant for his conduct in July of 2010,2 but instead, opted to leave him in a pay status, without working, until his contract expired in September, 2010. However, the record also shows that the office was overstaffed and despite his conduct, he would not be rehired. Contrary to Complainant’s assertion these facts are not necessarily contradictory. We also note that the record is devoid of evidence that similarly situated comparison employees outside Complainant’s protected classes were treated more favorably than 2 The record shows that Complainant failed to follow his supervisor’s instructions in the time- frame to clock off and failed to cooperate with an investigation into the unexplained damage to Complainant’s Agency-Issued pepper spray to protect against aggressive dogs on his route and was generally argumentative and insubordinate. 0120151316 5 Complainant. Lastly, we find that Complainant’s claims ultimately must fail because the record is devoid of evidence of discriminatory or retaliatory animus on the part of any responsible management official. Accordingly, giving this conclusion, it is not necessary to address the Agency’s assertion that the AJ erred in failing to award sanctions against Complainant.3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision without a hearing in favor of the Agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 3 We find Complainant’s motion for summary judgment and request for documents untimely and his motion for sanctions without merit. 0120151316 6 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 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: ______________________________ November 17, 2016 Date Copy with citationCopy as parenthetical citation