0120101072
06-24-2010
Gregory Ortiz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Gregory Ortiz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101072
Hearing No. 550200900212X
Agency No. 1F941004908
DECISION
Complainant filed an appeal from the Agency's December 29, 2009,
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.
The Commission deems the appeal timely and accepts it pursuant to 29
C.F.R. � 1614.405(a). 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 Handler at the Agency's San Francisco processing and Distribution
Center.
On November 12, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (Asian/Filipino)
and sex (male) when he was issued a notice of removal for "Unacceptable
Conduct/Threatening Behavior" on June 3, 2008.
Briefly, Complainant complained to his supervisor (Supervisor 1) about a
female employee (M) whom he felt was abusing her break times. Supervisor
1 told Complainant she would handle it and went to the break room to talk
to M. Complainant nonetheless followed Supervisor 1 to the break room.
Complainant followed up on the matter with Supervisor 1 the same day
and told her it was "bullshit." The next day Supervisor 1 spoke to
Complainant, informing him that she did not appreciate his behavior the
previous day. Complainant then told Supervisor 1 that a male supervisor
had been staring at him. When she asked Complainant what she could do to
help with the problem, Complainant stated that he, "wanted to confront
the mother fucker [male supervisor] and confront the bitch [M] to both
of their faces." Complainant said that he felt that the male supervisor
and M were testing him, and he asked Supervisor 1 if she had heard about
the shooting that had happened on the freeway. When she acknowledged
knowing about the shooting, Complainant told her it happened because
the victim was looking at other people crazy and that is the reason he
was shot. When Supervisor 1 told Complainant to calm down, he responded
that he was trying to stay calm, but did not know how long he could stay
calm and that it would not be good for everybody.
Supervisor 1 next asked Complainant if he was still seeing an EAP
[Employee Assistance Program] counselor, and he told her he had gone
for six visits but was no longer going. He also said he was no longer
seeing his therapist and added, "that bitch [M] made 3 years of therapy
go down the drain, that she [M] would not talk to him, that she had just
been cock-teasing him, and that if he was going to be in hell that she
was going to go through it with him." Supervisor 1 stated that she was
shocked and frightened by Complainant's behavior.
As a result of this incident, Complainant was issued a notice of removal
and filed the instant EEO complaint.
Complainant also grieved his removal and an arbitrator upheld the
removal. The arbitrator found that Supervisor 1 was more credible than
Complainant because Complainant provided various responses to the charge
such as "no comment," "cannot recall," and general denials of being
threatening.
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
timely requested a hearing.
Over the Complainant's objections, the AJ assigned to the case granted
the Agency's November 12, 2009 motion for a decision without a hearing.
The AJ issued a decision without a hearing in favor of the Agency on
December 18, 2009. The AJ took notice of the arbitrator's decision,
and also noted Complainant's affidavit dated February 4, 2009, where
he stated that he, "may have used a few inappropriate words. . .". The
AJ further found that the comparators named by Complainant were not
similarly situated, and even if they were, Complainant did not show that
the Agency's reasons for its actions were 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
Complainant submits numerous documents with his appeal, and continues
to argue that his comparators were similarly situated.
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 an administrative
judge's "decision to issue a decision without a hearing pursuant to
[29 C.F.R. � 1614.109(g)] will 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").
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.
Upon review of the record, we find that there are no issues of material
fact that needed to be resolved at a hearing, and the AJ properly issued
a decision by summary judgment. Complainant was put on notice of the
Agency's motion for summary judgment which included the facts of the
case, and Complainant was given the opportunity to respond, and there
was ample opportunity for discovery.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The Commission finds that the evidence of record supports the AJ's finding
that even if he had established a prima facie case of discrimination,
Complainant failed to show that the Agency's reasons were a pretext for
discrimination based on his race or sex.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, 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 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
June 24, 2010
__________________
Date
2
0120101072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101072