0120112335
07-11-2012
Frederick E. Brown, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Frederick E. Brown,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120112335
Hearing Nos. 550-2010-00118X; 550-2010-00334X
Agency Nos. 1F-946-0023-10; 1F-946-0029-09
DECISION
Complainant filed a timely appeal from the Agency's March 10, 2011, final order concerning his equal employment opportunity (EEO) complaints 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Complainant worked as a Vehicle Dispatching Clerk at the Agency's Oakland Processing and Distribution Center facility in Oakland, California. Complainant has prior EEO complaints and management is aware of Complainant's prior EEO activity.
On March 3, 2010, Complainant filed an EEO complaint (1F-946-0029-09) alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (PTSD), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 1, 2009, the Agency denied Complainant a schedule change request;
2. On May 14, 2009, the Agency issued Complainant a notice of a proposed seven day suspension;
3. Between April 8 and May 1, 2009, the Agency denied Complainant computer access;
4. On July 29, 2009, his supervisor touched Complainant inappropriately; and
5. On August 26, 2009, the Agency took Complainant off his bid position.
In his second complaint (1F-946-0023-10), Complainant alleged that he was subjected to a hostile work environment and harassment, when:
1. On November 24, 2009, the Agency did not accept his medical documentation and disapproved his request for leave without pay;
2. On November 24, 2009, the Agency denied Complainant opportunities for overtime;
3. On December 15, 2009, the Agency issued Complainant a 14-day suspension;
4. The Agency left Complainant's name off the 2010 holiday work schedule; and
5. The Agency did not provide Complainant training.
The record also shows that Complainant did not cooperate during the investigation and did not clarify the issues, despite the Agency's request for Complainant to clarify.
Schedule Change
The record shows that the Agency granted one of Complainant's requests to change his work assignment. The Agency disapproved one request for the period May 3, 2009 to June 4, 2009 upon the management's assessment that the operational needs required that Complainant adhere to his permanently approved schedule.
Seven-Day Suspension
The record also shows that Complainant had 104 instances of unscheduled leave during the period 2008 to 2009; and the Agency had given Complainant prior warnings. On May 14, 2009, the acting supervisor issued Complainant a proposed notice of a seven-day suspension due to his persistent irregular work attendance and excessive record of unscheduled absences. The suspension was also the subject of a separate grievance proceeding. Complainant does not dispute that he a record of chronic absenteeism.
Denial of Computer Access
Regarding the denial of computer access, the record shows that Complainant requested computer access on April 8 and May 1, 2009. The Agency denied the request. The Agency had not authorized computer access for any individuals in Complainant's work group because their positions did not require computer access.
Alleged Inappropriate Touching
Regarding the July 29, 2009 allegation that his supervisor touched Complainant inappropriately, Complainant acknowledged that the supervisor was looking the other way when she bumped into him. In addition, the surveillance video recorded at the time and location of the alleged incident did not reveal any evidence of inappropriate touching. The record includes testimony from four witnesses who saw the video. The record also shows that the Agency investigated the incident, but found that the allegation was unsubstantiated.
Medical Documentation Not Accepted and Disapproval of Leave
Complainant states that he suffers from Post Traumatic Stress. His alleged impairment is specific only to his current managers. On August 26, 2009, Complainant's medical provider requested that Complainant have no exposure to his supervisor and two other named managers. The record reveals that Complainant does not assert that he is unable to work in categories of positions. Complainant's only restriction is his inability to work with certain managers.
Taken Off Bid Position
The record shows that after receiving Complainant's request and based on the August 26, 2009 medical note, management assigned Complainant to different duties; and the Agency tried to limit contact between Complainant and his supervisors and managers. Complainant maintains that the Agency treated him differently because it did not comply with the recommendations of his health provider, as it did the recommendations of others and that the recommendations of white females or male Indians were given favorable treatment. There is no evidence in the record to support the claims.
Overtime and Holiday Work Schedule
The record shows that Complainant was provided overtime where his name appeared on the overtime-desired list and that he was assigned overtime based on the rotation schedule in place. In addition, the record shows that Complainant was paid for overtime for November 24 and worked six hours of overtime, which was more than others had worked.
On November 25, 2009, with regard to the alleged denial of 5 hours of requested leave without pay, the record shows that the acting supervisor denied Complainant's request because Complainant had an available sick leave balance and the acting supervisor authorized the leave, as sick leave, for the five hours that Complainant used.
14-Day Suspension
On December 14, 2009, the acting supervisor issued Complainant a Notice of 14 day suspension for Irregular Attendant / Unscheduled Absences and Failure to Report for Duty as Scheduled and Required. The record shows that Complainant had been issued a Notice of Seven-Day Suspension and a Letter of Warning. Complainant compares his treatment to that of others, but the record shows that the others had not had any attendance issues warranting any disciplinary actions.
Training
With regard to the denial of training, the record shows that Complainant did not request training and the record does not show that others who were similarly situated received special training.
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). Over Complainant's objections, the AJ assigned to the case granted the Agency's February 1, 2011, motion for a decision without a hearing and issued a decision without a hearing on March 3, 2011.(Complainant also filed a MSJ). The AJ concluded that Complainant waived his right to have the AJ reconsider the propriety of any dismissals.
The AJ found that Complainant provided no factual predicate for his claims of unlawful discrimination. The AJ found that the Agency granted one of Complainant's requests to change his work assignment. The AJ noted that the Agency disapproved Complainant's second request for the period May 3, 2009 to June 4, 2009, based upon the management's assessment that the operational needs required that Complainant adhere to his permanently approved schedule.
The AJ stated that "Complainant, himself, agreed that he had compiled this rapidly deteriorating record of chronic absenteeism and that he did not substantiate or report his absences in accordance with Agency policy."
The AJ also found that it was undisputed that the "only restriction or limitation which Complainant bears is an inability to work with certain managers" The AJ concluded that "such a person-specific malady does not constitute a disability with the law."
In addition, the AJ found that the actions were not sufficiently severe to state a claim of harassment.
Then, the AJ reasoned that the Agency articulated legitimate, nondiscriminatory reasons for his actions and that Complainant did not evidence to rebut the Agency's stated reasons.
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.
On appeal, Complainant reasserts his allegations and maintains that the AJ erred in not requiring the Agency to provide Complainant with the surveillance video that showed that his supervisor bumped into Complainant. He also states that the decision is not fair because it does not solve his problem and he is forced to continue to file complaints. The Agency asks that the Commission affirm the 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 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.
We find that the record was adequately developed. To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the action was taken because of a protected basis, i.e. in this case, race, sex, disability or reprisal. Only if Complainant establishes both of the elements does the question of the Agency's liability for harassment present itself. Complainant did not offer any such evidence.
In this case, we need not address whether Complainant established the prima facie elements of his case, because the Agency articulated legitimate reasons. Complainant did not provide any evidence to rebut the stated legitimate reasons for its actions.
Therefore, upon review of the record, we find that the AJ properly found that the instant complaints were suitable for summary judgment because there are no disputes of material fact or credibility, warranting a hearing.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
July 11, 2012
__________________
Date
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0120112335
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112335