0120080516
09-04-2009
Edward J. Chavez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Edward J. Chavez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120080516
Hearing No. 480-2007-00068X
Agency No. 4F-900-0173-06
DECISION
On November 9, 2007, complainant filed an appeal from the agency's October
5, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted for de novo review, pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether, in this case, the AJ properly issued a decision without a
hearing in favor of the agency.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk, PS-05, at the Bell Gardens, California Post
Office. On July 14, 2006, complainant filed an EEO complaint alleging
that he was discriminated against on the bases of race/national origin
(Hispanic), sex (male), disability (diabetes, prostate condition, asthma,
and varicose veins), age (58), and reprisal for prior EEO activity
[arising under Title VII, ADEA and Rehabilitation Act], when:
(1) on March 7, 2006, he was issued a letter of warning; and
(2) prior to April 3, 2006, he was not used as a 204-b and not given
Level 6 duties.
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. When complainant did not file a timely objection,
the AJ assigned to the case granted the agency's March 1, 2007 motion
for a decision without a hearing. The decision was issued on September
30, 2007.
AJ Decision
The AJ found that complainant did not proffer sufficient evidence
to establish that he is disabled pursuant to the Rehabilitation Act.
Additionally, the AJ found as to issue (1), that complainant was unable
to establish a prima facie case of discrimination on any of the alleged
bases, in that he did not identify any other employee with the same
supervisors who had an attendance record comparable to complainant's
attendance record and who was not issued a letter of warning. The AJ
further found that the record contained no evidence that complainant's
membership in a protected group motivated management to issue a letter
of warning.
As to issue (2), the AJ found that complainant established a prima facie
case of sex, national origin, and age discrimination since he was not used
or was used less than a similarly-situated co-worker (who was presumably
not in complainant's protected groups) as a 204-b supervisor in and
after November 2005. The AJ found that no prima facie case of disability
or reprisal discrimination was established. The AJ additionally found
that a manager articulated a legitimate non-discriminatory reason for
not using complainant as a 204-b and for level 6 duties, which was that
"[c]omplainant was unable to follow my instructions without verbal and
written challenges. These challenges were not only disruptive on the
workroom floor but also with the management staff."
The AJ next found as follows: complainant has not proffered evidence
which raises a material dispute about management's reason for not using
complainant as a 204-b and for level 6 duties. In fact, complainant
himself asserts that he had previously spoken his mind to his manager
about operational matters, and that his manager "preferred a person he
could push and they would bend." Further, complainant confirms that he
was used as a 204-b supervisor prior to the disagreement about complainant
moving equipment, and was not used as a 204-b after the disagreement.
Complainant has not proffered evidence which shows that management's
articulated reason for not using him as a 204-b supervisor and for level 6
duties was not entitled to credence and was a pretext for discrimination.
The AJ found no discrimination. 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 contends that personal problems (illness among his
family members, and his need to care for children/grandchildren) affected
his ability to respond to the agency's Motion for Summary Judgment.
He asserts that his brother (who subsequently died from cancer) was
at his worst right around the time when the agency filed its Motion.
Complainant now requests "a chance to oppose and respond to those
reasons why the 'motion for a decision without a hearing' should be
answered by me in contradiction to all these statements by the agency.
Many of which are taken out of context or I can easily contest with other
facts." Complainant also essentially contends that his representative
was deficient and did not advise him adequately about the need to oppose
the agency's Motion. In reply, the agency asks the Commission to affirm
the final order.
ANALYSIS AND FINDINGS
Initially, although we are sympathetic to the personal challenges that
complainant faced around the time when the agency filed its Motion for
Summary Judgment, we note that complainant, in his appeal brief, also did
not take advantage of the opportunity to provide any substantive argument
as to why the Motion ought to have been denied, and a hearing held.
That is, he has not set forth the argument that he feels he would have
presented in an Opposition to the Motion, such as specifying any genuine
issues of material fact or credibility which ought to be resolved at
a hearing. Additionally, we note that complainant is responsible for
choosing his representative, and we cannot now remand the complaint for
a hearing on the basis that he believes his representative did not advise
him well.
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").
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). After a careful review of the record,
the Commission finds that the AJ's decision referenced the appropriate
regulations, policies, and laws. Moreover, we find that the AJ properly
issued a decision without a hearing because complainant failed to show
that a genuine issue of material fact exists.
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).
We find that, assuming complainant is disabled under the Rehabilitation
Act, and that he could establish a prima facie case of discrimination
on the alleged bases, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the LOW was
issued for complainant's irregular attendance, which he does not deny
occurred. As to being denied 204-b duties, the manager stated that he
decided who would be an acceptable candidate for acting in a supervisor
position based upon many factors that include attendance; craft work
habits; personality; interest in supervising; and ultimately performance
as an acting supervisor. The manager stated that complainant was unable
to follow his instructions without verbal and written challenges, and
that these challenges were not only disruptive on the workroom floor
but also with the management staff. The Officer-in-Charge stated that
the reason complainant was not being used as a 204-b was because of a
prior incident between complainant and the manager, wherein complainant
refused to follow an instruction.
In an attempt to establish pretext, as to the LOW, complainant contends
that four of the nine incidents of unscheduled absences cited in the
LOW were because he had a car accident and had to take the bus, and
then borrowed a car which sometimes started and sometimes did not start
right, and he had to let it warm up before driving. He also claims that
sometimes his absenteeism was due to symptoms of his disabilities.1 As
to issue (2), complainant claims that he was not chosen to be a 204-b
because of his membership in protected groups, and because he and his
manager have different personalities. We find no persuasive evidence
of pretext. Although the record clearly establishes that complainant and
his manager may have had conflicting personalities, there is no evidence
that the manager was motivated by discriminatory or retaliatory animus.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue of
material fact is in dispute.2 Therefore, we AFFIRM the agency's final
order.
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
_____9-04-09_____________
Date
1 There is no indication that complainant, in his complaint, alleged
that he requested and/or was denied a reasonable accommodation which he
needed in order to have fewer absences from work.
2 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120080516
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080516