0120121841
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. 0120121841
Hearing No. 550-2011-00497X
Agency No. 1F-946-0134-10
DECISION
Complainant filed a timely appeal from the Agency's February 16, 2012, 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. 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 filed prior complaints. One of the complaints (Agency No. 1F-946-0023) relates to the same claims alleged in this complaint. On September 6, 2010, Complainant contacted the EEO counselor regarding new allegations.
On December 3, 2010, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the bases of race (African-American), disability (unspecified), and reprisal for prior protected EEO activity under Title VII, when:
1. On August 24, 2010, his supervisor bumped into him;
2. On unspecified dates beginning in November of 2010, Complainant was denied overtime;
3. On an unspecified date, Complainant was denied a change of schedule; and
4. On an unspecified date, management altered Complainant's attendance when management charged Complainant with an absence.
The record shows Complainant is reasserting claims that he previously raised (in Agency complaint numbers 1F-946-0029-09 and 1F-946-0023-10), including the denial of a change of schedule and management's altering his attendance.
The record shows that during the investigation, Complainant did not provide the reasons why he believed that his race, disability or prior EEO activity was a factor in the alleged actions. In addition, Complainant did not provide any response when asked how the denial of overtime was retaliatory.
The record shows that Complainant acknowledged in his affidavit that the supervisor bumped into Complainant when she "came from her desk while walking and looking in the opposite direction." Complainant asserts that the supervisor should have waited and had no reason to be in his area.
With regard to his race claim, Complainant maintains that "Indian employees get to work holidays and don't do much work."
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 November 21, 2011, motion for a decision without a hearing and issued a decision without a hearing on February 9, 2012.
The AJ found that the record was adequately developed for summary disposition. The AJ concluded that Complainant's claims (that management did not change his schedule) in 2009 were untimely. The AJ also noted that it was undisputed that the Agency provided Complainant with overtime according to the rotation schedule or had stated its operational reasons for denying him schedule changes. The AJ found that Complainant failed to show that the Agency's conduct was pervasive harassment since the Agency had granted his request on six other occasions.
The AJ also reasoned that the Agency offered legitimate nondiscriminatory reasons for its actions and that Complainant had not offered any evidence that would rebut the Agency's position. The AJ concluded that the record does not contain any evidence from which a reasonable trier of fact could infer that the Agency's actions are a pretext for 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.
CONTENTIONS ON APPEAL
On appeal, Complainant presents no new arguments, but contends that the AJ erred in refusing to require that the Agency provide a copy of the surveillance tape.
The Agency asks that the Commission affirm the final order.
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 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. 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.
To prove his disability claim, as a threshold matter, Complainant must establish that is a qualified individual with a disability. An impairment is substantially limiting when it prevents an individual from performing a major life activity. Consequently, Complainant must establish that: 1) he is an individual with a disability; 2) he is qualified for the position held or desired; 3) he was subjected to an adverse employment action; and 4) the circumstances surrounding the adverse action give rise to an inference of discrimination. In this case, Complainant does not specify any disability and acknowledges that his condition is person-specific.
To prove his hostile environment 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 conduct was taken because of a protected basis, i.e., in this case, race, disability or reprisal. Only if Complainant establishes both of those elements, does the question of the Agency's liability for a hostile environment present itself.
Upon review of the record, we agree with the AJ that the record is sufficient for summary disposition. Complainant does not deny that the supervisor did not see Complainant and bumped into him while looking the other way. He does not dispute that the Agency granted some of Complainant's requests for leave and overtime or that it required Complainant to adhere to his schedule when management determined that the operational needs of the Agency required Complainant to be present. While there is no dispute that Complainant engaged in prior protected activity about which management was aware, we conclude that the incidents are insufficiently severe or pervasive to render the work environment hostile. Moreover, we conclude that no reasonable fact finder could conclude the alleged incidents were motivated by retaliatory animus, based on this record. Therefore, Complainant's claims fail. The AJ's decision not to hold a hearing was appropriate.
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
2
0120121841
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121841