0120152869
11-16-2016
Eric B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eric B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120152869
Hearing No. 480-2013-00345X
Agency No. 4F-926-0020-13
DECISION
On September 12, 2015, Complainant filed an appeal from the Agency's August 20, 2015, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 herein are (1) whether an Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was proper; and (2) whether Complainant established discrimination on the bases of age (58) and reprisal (prior EEO activity) when he received a Letter of Warning (LOW) on September 18, 2012.
BACKGROUND
During the period at issue, Complainant worked as a Carrier Technician at the Post Office in Upland, California. On November 23, 2012, he filed a formal complaint in which he alleged, in relevant part, discrimination on the bases of age (58) and reprisal (prior EEO activity) when he received a Letter of Warning (LOW) on September 18, 2012. The Agency accepted this claim for investigation.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an AJ. Complainant requested a hearing. Thus, his case was forwarded to the appropriate EEOC District Office and assigned to an AJ.
Over Complainant's objections, the AJ assigned to the case granted the Agency's July 5, 2013, motion for a decision without a hearing. The AJ issued her decision without a hearing on August 11, 2015, in which she determined Complainant did not establish discrimination as alleged. The Agency subsequently issued a final order adopting in full the AJ's findings. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends the AJ committed an error of law when she denied Complainant's motion to compel during the discovery stage of the proceeding. Complainant further contends that the AJ committed an error of law when she did not order the Agency to produce a copy of an Office of Inspector General (OIG) report, which he alleges contained information that proved his allegation of discrimination. The Agency did not submit contentions on appeal.
STANDARD OF REVIEW
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 AJ'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 or reject 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").
ANALYSIS AND FINDINGS
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds 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, 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 the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only after determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Thus, we find that the AJ's decision to issue a ruling without a hearing was proper.
Discrimination
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, Complainant has established prima facie cases of age and reprisal discrimination.
We now consider whether the Agency stated legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. The Agency stated that Complainant was given a Letter of Warning on September 18, 2012, because he made inappropriate comments to his supervisor. Specifically, the Agency stated that Complainant and his supervisor engaged in a heated exchange, which prompted Complainant to state that "your mother has more balls than you do." The Agency provided documentary evidence to support its statement. See Agency's September 18, 2012, Letter of Warning. Based on this, we find that the Agency has met its burden to state a legitimate, nondiscriminatory reason for its action.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail on his claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason was a pretext for prohibited discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward based on age or reprisal. To meet his burden, Complainant stated that an Agency employee, MP, provided a statement which contradicts the Agency's statements. However, a reading of MP's affidavit reveals no such contradiction. See Report of Investigation, Affidavit E.
Complainant proffered no evidence, except his own beliefs and assertions, to demonstrate pretext. However, such statements and speculation, without corresponding probative evidence, do not suffice to meet his burden. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has failed to show that the Agency's stated reasons were pretextual.
Complainant's Contentions on Appeal
Regarding Complainant's first contention on appeal, that the AJ committed an error of law when she did not require the Agency to comply with his discovery requests, the AJ found that, regarding the first request filed on June 19, 2013, Complainant himself did not comply with the AJ's March 20, 2013, Acknowledgment Order (Order), which set forth certain requirements to be followed when filing a motion to compel. Specifically, the AJ noted that the Order required the declaration that the moving party, in this case Complainant, made a good faith effort to resolve the dispute and identify the items remaining in dispute. The AJ determined that Complainant's attempt to contact the Agency the day before filing his motion did not evidence a good faith effort to resolve the dispute. The AJ further noted that the Order required that the motion to compel be accompanied by discovery requests and responses, which Complainant failed to include. See AJ August 11, 2015, Decision at 2.
As to Complainant's second request for discovery, filed on June 25, 2013, the AJ determined that Complainant's request should be denied because he again did not comply with the Order. Specifically, the AJ found that Complainant failed to provide evidence or identify the efforts made by him and his representative to show that there was an actual attempt to resolve the dispute as required by the Order.
The AJ's determinations are supported by the record. The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. � 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, � III(D) (Aug. 5, 2015). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). Given this broad authority, the Commission declines to find in Complainant's favor regarding the AJ's determinations.
Next, we address the AJ's decision not to order the Agency to compel the Agency to produce an OIG report which Complainant alleges would have proven his discrimination allegations. The Commission has held that statements made in the course of an OIG investigation do not form the basis of an actionable claim. See Johnson v. Dep't of the Navy, EEOC Request No. 05960699 (Apr. 16, 1998) (ruling that being the subject of an OIG investigation does not state a claim); Mattocks v. Dep't of the Navy, EEOC Request No. 05950549 (Aug. 29, 1996) (finding that because Commission's authority is limited to addressed acts of discrimination by a complainant's employer, and OIG is considered legally separate from agency, complainant may not maintain an EEO complaint against agency concerning actions taken by OIG agent during investigation). We therefore find that the AJ's decision not to compel the Agency to provide the OIG report to be appropriate as any information contained therein likely would have been irrelevant for our purposes.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's issuance of a ruling without a hearing was proper and that Complainant failed to establish discrimination based on age and reprisal. Accordingly, we hereby AFFIRM the Agency's final order adopting in full the AJ's decision.
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 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:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_11/16/16_________________
Date
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.
2 Complainant further alleged discrimination when he was accused of falsifying a Step A Grievance Form on September 17, 2012, and when the Agency allegedly violated Article 8 of the National Agreement, which caused an increase in the grievance workload and refused to pay Complainant overtime forcing him to work off the clock on unspecified dates. The Agency dismissed those allegations for lodging a collateral attack on the grievance process and failure to state a claim. See Agency's December 24, 2012, Partial Acceptance/Dismissal. Complainant did not challenge those dismissals before the AJ nor does he challenge them on appeal. See Parties' September 8, 2014, Joint Statement (stating the sole issue before the AJ); see also Complainant's September 12, 2015, Brief in Support of Appeal.
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