0120103316
07-20-2012
Garland D. Lewis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Garland D. Lewis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120103316
Hearing No. 541-2010-00042X
Agency No. 1E-801-0042-09
DECISION
Complainant filed an appeal from the Agency's July 29, 2010 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Mail Processing Clerk at the Agency's Downtown Station facility in Denver, Colorado. On August 3, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (54) when:
1. On April 8, 2009, and April 15, 2009, Complainant was by-passed for a full tour of overtime;
2. On April 18, 2009, Complainant called in sick and was charged with Leave Without Pay (LWOP) instead of sick leave;
3. On April 30, 2009, Complainant was assigned to the General Mail Facility (GMF) for allegedly creating a hostile work environment; and
4. On May 2, 2009, Complainant was told to clock out and leave the building.
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). Complainant requested a hearing. By order dated June 25, 2010, the AJ denied Complainant's motion to amend his complaint to include the basis of reprisal. The AJ assigned to the case granted the Agency's May 27, 2010 Motion for a Decision without a Hearing, and found that the complaint did not warrant a hearing. Over Complainant's objections, the AJ issued a decision without a hearing on July 20, 2010.1
In his Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ found no dispute that Complainant was passed over for overtime on April 8, 2009, while a junior employee (E1), was allowed to work overtime. S2, the Agency official concurring in the overtime decision, explained that Complainant was not used for the overtime on that occasion because Complainant was not trained to handle the "carrier bar/caller service." The AJ noted that Complainant disputes S2's reasons. The AJ found that even if Complainant had such training, Complainant failed to present a prima facie case that his sex or age played any role in the Agency's decision because E1, the employee allowed to work the overtime, was the same sex and approximately the same age as Complainant. (Claim (1)).
With respect to claim (2) (sick leave), the AJ found that Complainant called in sick on April 18, 2009. The AJ noted that when he did so, Complainant was asked, by the Agency's automated telephone system, to provide medical documentation regarding his absence when he returned to work. The AJ found no dispute that when Complainant failed to provide the medical documentation, he was charged LWOP by S2. S2 explained, the AJ found, that Complainant had incurred five unscheduled absences since January 1, 2009, for a total of 29.4 hours of sick leave used. The AJ noted that a younger, female employee was also charged with LWOP rather than sick leave.
Regarding claim (3), the AJ found no dispute that S2 sent Complainant to the GMF because she believed that Complainant was creating a problem at the downtown station. The AJ found that Complainant did not present any evidence from which to infer that S2 was motivated by Complainant's sex or age.
With respect to claim (4), the AJ found that Complainant had been ordered to report to the GMF on May 1, 2009. Instead, Complainant reported at his regular begin tour time at the Denver (downtown) station. The AJ found no dispute that after noting Complainant's arrival at the Denver Station on May 2, 2009, S1 was directed by S2 to instruct Complainant to clock out of the downtown station and to report to the GMF as he had been previously directed. Again, the AJ found that Complainant did not present any evidence from which to infer that his sex or age played any role in S2's decision to send Complainant to the GMF.
The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to sex or age discrimination as alleged.
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.
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. 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 administrative judge 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 administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
In the instant case, we find the AJ properly issued his decision without a hearing and find that none of the material facts remain in dispute. Specifically, we find, as did the AJ, that Complainant has failed to identify any similarly situated employees, not in his protected classes, who were treated better than he was. We further find no evidence to link Complainant's sex or age to the Agency actions Complainant believes were unfairly directed at him.
We observe, as did the AJ, that Complainant is the same sex and age as the employee who was allowed to work the overtime on April 9, 2009. We find no evidence that Complainant's sex or age motivated S2 to select E1 over Complainant for the overtime opportunity. We further find no evidence that Complainant's sex or age prompted S2 to program the Agency's automated outgoing message to Complainant to request medical documentation. Complainant does not dispute that he had used 29 hours of sick leave from January 1, 2009 through April 2009. We do not find any evidence that Complainant's sex or age was the real reason that Complainant was charged with LWOP for failing to provide medical documentation when he requested sick leave on the indicated date.
We find, as did the AJ, that Complainant did not present any evidence that his sex or age motivated S2 to remove Complainant from a duty station S2 believed would benefit from his reassignment. (Claim (3)). We consider Complainant's contention that he was not causing any hostility at the downtown Denver station. We assume, without so finding that he was not causing other employees to become annoyed. We find that even so, Complainant has not presented evidence that more likely than not his sex or age were the real reason that S2 chose Complainant to be returned to the GMF rather than any other employee. We find that S1, Complainant's immediate supervisor, confirmed that employees had complained to S1 that Complainant had been slowing down their work. We find no evidence that S1 considered Complainant's sex or age in the Agency's decision to excess Complainant to the GMF along with other employees.
Regarding claim (4), we find no dispute that Complainant reported for work at the downtown Denver station and no dispute that thereafter, Complainant was told to clock out. We note the parties dispute whether Complainant was provided with adequate instructions regarding his instructions to report to the GMF on May 2, 2009. We do not find this dispute to be material to the question of whether discrimination motivated S1 to instruct Complainant as he did. We assume for the sake of argument that Complainant was not provided adequate instructions, and that Complainant properly failed to report to the GMF because he did not know to whom he was to report. Even so, we find the Agency's purported failure to provide Complainant with adequate instructions does not prove that Complainant's sex or age played any role in the sequence of events. We note the affidavit of S1, Complainant's immediate supervisor, confirms that other employees (all male) were similarly told to clock out and leave the building. We find no evidence that Complainant was treated differently than others not in his protected sex and age groups.
We find the AJ properly issued his decision without a hearing and after resolving all reasonable factual disputes in Complainant's favor. We discern no basis upon which to disturb the AJ's decision and the Agency's Final Order.
CONCLUSION
We therefore AFFIRM the Agency's Final Decision.
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 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 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 20, 2012
__________________
Date
1 The Agency had also dismissed a portion of the complaint, but Complainant has not pursued those claims before the AJ or on appeal and therefore we shall not address such claims.
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0120103316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103316