0120150235
03-16-2017
Garth N.,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
Garth N.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120150235
Hearing No. 480-2011-00363X
Agency No. 4F-92600-0311
DECISION
On July 29, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 30, 2014, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding that Complainant did not demonstrate that he was subjected to discrimination, reprisal, and/or a hostile work environment.
ISSUES PRESENTED
Whether the AJ erred by issuing a decision without a hearing; and finding that Complainant was not subjected to reprisal, disability discrimination, and/or a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Services at the Agency's Artesia Post Office in Artesia, California. On April 20, 2010, Complainant's supervisor (S1) presented Complainant with a written "Plan for Success."
The Plan was issued to address Complainant's performance deficiencies. All of the supervisors at the Artesia Post Office were given the same document. On May 19, 2010, all supervisors were also presented with a memorandum entitled "3M Certification Letter." The memorandum addressed specific procedures to be followed in tracking the processing and delivery of certain types of mail.
From May 20, 2010 to September 28, 2010, Complainant did not report for duty due to illness. On June 6, 2010, Complainant submitted a claim for worker's compensation benefits. His injury was described as "stress, depression, and anxiety." Complainant did not provide any medical reports or other documentation regarding his condition.
When Complainant returned to work on September 28, 2010, S1 presented him with a Letter of Concern. The Letter stated that Complainant failed to address and correct the performance deficiencies that were identified in the Plan for Success. Complainant was also provided with an additional copy of the Plan. Complainant worked until October 5, 2010, but did not report for duty again until January 10, 2011. Thereafter, on October 15, 2010, Complainant's physician faxed a note to the Agency stating that Complainant had been treated for lower back pain, disc herniation, and fatigue.
When Complainant returned to duty on January 10, 2011, his physician provided a note that Complainant's medical documentation would not be available until January 14, 2011. The note did not state whether Complainant could perform the essential functions of his position with or without restrictions. Therefore, Complainant was not allowed to return to work. The record showed, however, that Complainant's physician faxed the medical documentation on January 6, 2011, but S1 did not receive the documents.
On November 10, 2010, and February 1, 2011, Complainant filed EEO complaints alleging that the Agency discriminated against him on the bases of disability (stress, depression, anxiety, and back injury) and reprisal for prior protected EEO activity when:
1. Since September 28, 2010, he was subjected to a hostile work environment in regards to the Letter of Concern;
2. Changes were made to his work schedule on a daily basis;
3. He was assigned more work than he could perform in 8 hours; and
4. He was ordered not to go to the doctor for therapy.
Complainant also alleged discrimination based on Retaliation (prior and current EEO activity) when:
5. On January 10, 2011, he was not permitted to return to 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 Administrative Judge. Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's November 7, 2013, motion for a decision without a hearing. The AJ found that Complainant did not issue a response to the Agency's motion. The AJ issued a decision without a hearing on June 23, 2014. 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.
Specifically, the AJ noted Complainant's contention that claims 1 - 4 took place between September 28, 2010 and January 10, 2011. The AJ found that there were only five (5) days during that time frame that Complainant and S1 would have had any contact, and that there was no evidence that S1 had any knowledge of Complainant's physical or mental impairments. The AJ noted that Complainant provided a physician's statement dated May 20, 2010, which indicated that Complainant had been treated for lower back pain, insomnia, anxiety, and depression. The note also stated that Complainant was able to return to work without restriction on May 28, 2010. S1 did not receive any other medical documentation until October 15, 2010, that indicated that any of these conditions reoccurred after May 28, 2010.
The AJ found that the evidence showed that Complainant's schedule was not changed, that he was not given more work than any other supervisor, and that none of Complainant's requests for sick leave were denied. The AJ also found that even if Complainant could establish a prima facie case, the Agency articulated legitimate nondiscriminatory reasons for its actions, namely, that Complainant was issued a Letter of Concern because he did not demonstrate improvement in the performance deficiencies that were identified in the Plan for Success that all supervisors received.
Further, with respect to claim five, the AJ found that Complainant was not allowed to return to work after an extensive sick leave because he did not provide any medical documentation that indicated that he was able to perform the essential functions of his position. The AJ found that Complainant provided no evidence which showed that the Agency's reasons were pretext for discrimination and/or reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the AJ erred in finding that he did not submit a response to the Agency's motion for summary judgment. Complainant asserts that he submitted a timely response to the Agency's Motion for Decision without Hearing on November 25, 2013. Complainant argues that the AJ's Decision without a Hearing had numerous substantive material facts in dispute as well as credibility issues. Complainant indicates that he is providing additional documentation to prove his claims as well as the information from credible witnesses to the discrimination and the hostile work environment relevant to this case.
Further, Complainant maintains that the AJ erred when he found that his supervisor did not know that he was disabled. Complainant contends that the record shows that he submitted medical documentation in April 16, 2010, May 20, 2010, and a CA-2 form dated June 9, 2010 for stress. Complainant argues that his supervisor was Acting Postmaster as well as his supervisor so therefore he would have known about his disability.
Complainant also asserts that the AJ erred in believing that his supervisor was not aware of his prior EEO activity until recently. Further, Complainant maintains that the AJ's decision did not address Complainant's claims of being subjected to a pervasive and severe hostile work environment over several months. Complainant contends that there was a very intimidating atmosphere at the facility. Complainant asserts that he confided in a coworker that he felt that he was being subjected to harassment. He maintains that his witness saw the supervisor arguing with Complainant and "talking down" to him. Complainant maintains that another supervisor was out on stress leave and another supervisor was also being harassed by the supervisor. Complainant indicates that the supervisor had a history of creating a hostile work environment at another location.
The Agency did not provide a brief 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 administrative judge'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 (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").
ANALYSIS AND FINDINGS
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. 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). Upon we review, we find that the requirements for a decision without a hearing were met. We find that there are no material facts at issue so a decision without a hearing was properly granted.
Based on a thorough review of the record including Complainant's response to the Agency's Motion for Summary Judgment and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal and disability discrimination and assuming without finding that Complainant is an individual with a disability, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was issued a Letter of Concern because the elements of his performance that were highlighted in his Plan for Success had not improved. We find that no evidence was presented either in the record or by Complainant that showed that there were changes to his work schedule, or that he was assigned more work than he could do in an eight hour period. There was also no evidence which showed that Complainant was ordered not to go to therapy or was denied leave. Also, with regard to his work load, the evidence showed that all of the supervisors were given Plans for Success and that it was not limited to just Complainant. Moreover, Complainant did not identify any specific tasks that he claimed were assigned.
Further, with regard to Complainant not being permitted to return to work without medical document after an extended leave, we find that management explained that it was not known if Complainant was returning with or without restrictions so more medical information was needed. We find that Complainant did not show that the Agency's reasons were pretext for discrimination.
With respect to Complainant's contentions on appeal, we find that the record supports Complainant's contention that he submitted a response to the Agency's Motion for Summary Judgment. Notwithstanding, however, we find that the information contained therein does not show that material facts were in dispute. We find that other than conclusory statements, Complainant has not provided any evidence which supports his claims. For example, Complainant maintains that other supervisors were also under stressed at the facility. We find this statement, however, supports the Agency's position that Complainant was not treated differently than the other supervisors. Complainant also argues that S1 had a reputation for creating a hostile work environment at another facility. However, Complainant offers no evidence that S1's reputation involved discrimination. Moreover, even if we assume that S1 knew of Complainant's disability and prior EEO activity, there is no persuasive evidence that S1's actions were taken based on discriminatory animus for Complainant's prior EEO activity or disability.
Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
We find that Complainant has not demonstrated that he was subjected to reprisal, discrimination or a hostile work environment.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order which fully implemented the AJ's finding that Complainant did not demonstrate that he was subjected to discrimination, reprisal, or a hostile work environment.
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
___3/16/17_______________
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
0120150235
8
0120150235