0120160781
04-13-2018
Hortencia R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hortencia R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160781
Hearing No. 450-2013-00307X
Agency No. 4G-752-0063-13
DECISION
On November 13, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 16, 2015, final order concerning her 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.
ISSUE PRESENTED
Whether Complainant was subjected to disparate treatment and reprisal when she was issued a Letter of Removal for Unacceptable Conduct/Performance/Failure to Follow Instructions/Misuse of Customer Funds and Not Properly Filling-out PS Form 4570.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Gladewater Post Office facility in Gladewater, Texas. On February 15, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967, when on December 5, 2012, she was issued a Letter of Removal for Unacceptable Conduct/Performance/Failure to Follow Instructions/Misuse of Customer Funds and Not Properly Filling-out PS Form 4570, effective January 10, 2013.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After the Agency submitted a motion for a decision without a hearing and the Complainant responded, the AJ assigned to the case issued a decision without a hearing on September 29, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The investigative record shows that, on November 13, 2012, Complainant stopped at a gas service station to refuel her Postal Service vehicle. Postal carriers were required to use a Voyager card to make gasoline fueling payments. After Complainant filled her vehicle and went into the station to pay, her payment card was rejected. While most service stations in the work area accepted the Voyager card, this station did not.
Complainant called her supervisor (S1) and advised her of the situation and that she did not have any money. The only money Complainant had was that of a postal customer, to be used to purchase stamps to be delivered the next day. Complainant used this money to pay for the gas. While Complainant states that S1 indicated that she could use the postal customer's stamp money to pay for the gas, the Agency presented evidence that postal carriers were given training which required them to confirm that gas stations accepted the Voyager card prior to refueling their service vehicles.
In her investigative affidavit, Complainant acknowledges that she had not participated in any EEO activity prior to the instant complaint. With respect to her race and color claims, Complainant stated, without providing evidence, that S1 does not like Black males or females. Complainant's evidence regarding her age based claim is similarly lacking in proof, stating only that she was "the oldest Black Female in the office. The other Black females are in [sic] there 20's, 30's & 40's." While Complainant avers that several alleged comparators were treated differently, she did not produce any evidence that the comparators used postal customer money to pay for refueling their service vehicle. Finally, she did not justify her failure to properly complete Form 4570, which was used to validate mileage on her service vehicle.
CONTENTIONS ON APPEAL
On appeal, Complainant offers only a copy of her Dispute Resolution Specialist's Inquiry Report, which states, among other things, that her removal was not justified because S1 was aware that Complainant had no personal funds for gas and that she would use her customer's stamp money to refuel her work vehicle and be reimbursed the next day. No supporting statement was offered on appeal. The Agency contends that Complainant failed to establish a prima facie case of discrimination because she failed to show that similarly situated comparators were treated more favorably. Furthermore, the Agency avers that Complainant's reprisal claim fails because she made no showing that she engaged in prior EEO activity. Additionally, the Agency contends that Complainant failed to show that its legitimate, nondiscriminatory reasons for removing Complainant were pretextual.
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
AJ's Issuance of a Decision Without a Hearing
We must 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).
We find that there are no genuine issues of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, she was given a comprehensive statement of the undisputed material facts, and she was given the opportunity to respond to such a statement. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, we find that the Agency did not subject Complainant to disparate treatment on the bases of race, color, age or reprisal for prior protected EEO activity when it issued the Letter of Removal. Assuming, for the purposes of argument, that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant failed to follow proper Postal Service procedures for refueling her vehicle and handling customer funds. Additionally, Complainant failed to follow the requirements for completing the Form 4570 to support her service vehicle mileage. In the instant matter, Complainant failed to prove, by a preponderance of the evidence, that the Agency's reasons for its action was pretext for discrimination. Instead, the record supports the Agency's action.
Moreover, there is no evidence in the record that the Agency treated Complainant differently than similarly situated employees who were not in her protected classes or who had not engaged in prior protected EEO activity. See generally EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, at 15-V.A.2 and 15-VII.B.7 (Apr. 19, 2006) (if an employee alleges that his race was a reason he was discharged for misconduct, similarly situated employees should be identified who engaged in misconduct of comparable seriousness; policies regarding discharge must be enforced in an evenhanded manner, without regard to race).
CONCLUSION
The AJ's issuance of a decision without a hearing was appropriate. Complainant did not establish that the Agency subjected her to discrimination on the bases of race, color, age or reprisal for prior protected EEO activity when it issued a Letter of Removal. Therefore, 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 finding that Complainant did not establish discrimination as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
___4/13/18_______________
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.
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