0120092694
06-10-2010
Henry M. DeLaTorre, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Henry M. DeLaTorre,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120092694
Hearing No. 480-2009-00183X
Agency No. 4F-956-0152-08
DECISION
Complainant filed an appeal from the agency's March 24, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 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 Manager, Customer Service at the agency's Hughes Station facility
in Fresno, California. On September 6, 2008, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of race
(Hispanic), national origin (Hispanic/American), sex (male), religion
(Catholic), color (brown), disability (stress), age (44), and reprisal
for prior protected EEO activity, when:
On May 30, 2008, complainant became aware that a selection had
been made (and consequently, that he had not been selected) for
the position of Postmaster, Clovis, California after complainant
was informed that the vacancy announcement had been cancelled.
At the conclusion of the investigation, complainant was provided 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. The AJ assigned to the case determined sua sponte that the
complaint did not warrant a hearing and over the complainant's objections,
issued a decision without a hearing on March 16, 2009.
In her decision, the AJ found that the selectee for the position of
Postmaster, Clovis, California was Hispanic, male, and three years older
than complainant. The AJ assumed in her decision for the sake of argument
that complainant was a qualified individual with a disability. The AJ
also acknowledged that at the time complainant discovered that a selection
had been made for the Clovis Postmaster position, that complainant had
another EEO complaint pending.1 The AJ found no dispute among the parties
that complainant did not attend an interview for the position for which
he was scheduled, with S1, the selecting official. Complainant claimed,
the AJ found, and so, the AJ assumed, that he received a letter from
the agency2 informing him that the vacancy announcement, through which
complainant had applied, had been cancelled.3 Significantly, the AJ noted
that the letter complainant received was not sent by S1. Neither party
disputes that complainant did not appear for the scheduled interview and
another candidate was selected. The AJ reasoned that complainant failed
to establish that discrimination occurred because complainant did not
present any evidence from which it could be concluded that complainant
was not selected for the position because of his membership in any
protected class. The AJ found no evidence to establish the agency's
decision was motivated by discrimination on any of the bases cited in
complainant's complaint.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant states that although the letter, dated April 23,
2008, that he received from the agency informing him that the position
had been cancelled does not indicate that S1 sent it to him, nothing in
the record shows that S1 did not send him the letter.
On appeal, the agency argues that complainant's appeal is untimely.
The agency argues that complainant received the agency's final order on
March 30, 2009. Therefore, the agency states that complainant's appeal
should have been filed by April 26, 2009. The agency requests that
complainant's appeal (filed May 2, 2009) be dismissed.
ANALYSIS AND FINDINGS
As an initial matter, we note that complainant states that he received
two final orders from the agency, both of which fully implemented
the findings of the AJ regarding his complaints, agency case numbers
4F-956-0179-07 and 4F-956-0152-08 on April 9, 2009 and March 30, 2009.
We find it reasonable that complainant may have been confused, or at a
minimum, uncertain about the time limit for filing his appeal(s) given
the notices contained in the two separate final orders and the notice
contained in the AJ's initial consolidated order in the instant case.
Accordingly, we deem complainant's appeal to be timely filed.
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. Department of Defense, 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).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case we find the AJ properly issued her decision without
a hearing. We find the material facts are not in dispute. Specifically,
we assume, as did the AJ, that complainant received a notice dated April
23, 2008, informing him that the position (Postmaster, Clovis, California)
for which he had applied had been cancelled. We find no dispute between
the parties that complainant did not attend the interview for which
he was scheduled, because he received that notice. We further find no
dispute that complainant was not selected because failed to appear for
his interview. After a careful review of the record, we find no evidence
from which to draw the necessary inference that S1 was either involved in
sending that notice to complainant, or that complainant's race, national
origin, disability4, age, color, religion, sex, or prior participation in
the EEO process, prompted the agency to send the letter to complainant.
Accordingly, we find the AJ properly found the no discrimination occurred
when complainant was not selected for the position of Postmaster for
Clovis, California in May 2008.
We AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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 10, 2010
__________________
Date
1 The AJ issued one decision on the consolidated complaints,
4F-956-0179-07 and 4F-956-0152-08. The agency issued two separate
final orders from the AJ's decision. Complainant's appeal of the final
order in 4F-956-0179-07 was docketed by the Commission as Henry DeLaTorre
v. United States Postal Service, EEOC Appeal No. 0120092695.
2 This notice appears to have originated from the agency's HR Shared
Service Center. No signature accompanies the notice.
3 The AJ noted that the agency had posted a number of announcements
for the Clovis Postmaster position, and that complainant had applied in
response to three of the position postings.
4 We assume, without so finding, that complainant is an individual with
a disability.
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0120092694
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092694