Jessie D. Hoffman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 11, 2009
0120090256 (E.E.O.C. Feb. 11, 2009)

0120090256

02-11-2009

Jessie D. Hoffman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jessie D. Hoffman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090256

Hearing No. 461200800075X

Agency No. 1G701005607

DECISION

On October 15, 2008, complainant filed an appeal from the agency's

September 16, 2008 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission AFFIRMS the agency's final

order.

ISSUES PRESENTED

Whether the AJ's decision to issue a decision without a hearing, finding

no discrimination, was correct.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Tractor Truck Operator at the agency's Paramount, California facility.

Complainant previously worked as a Tractor Truck Operator in New Orleans,

Louisiana prior to Hurricane Katrina and its aftermath. Following the

hurricane, complainant left the area and moved to California for personal

reasons. As an employee who voluntarily moved from the New Orleans

area after the hurricane, complainant had retreat rights in accordance

with a memorandum of understanding between the Postal Service and the

American Postal Workers' Union, AFL-CIO. Pursuant to the memorandum of

understanding, complainant had the right to return to New Orleans to

fill a residual vacancy, if he had the most seniority of individuals

who wanted to return to New Orleans.

Complainant alleged he was sent a bid package in California and tried to

bid on the position over the phone, but was not successful. On July 30,

2007, complainant relocated back to New Orleans because he believed he

had the most seniority for the job.

On or about July 30, 2007, complainant contacted the District Complement

Coordinator, who informed complainant that the bid package was sent

in error, and that it was not his turn to return. On August 1, 2007,

complainant was contacted to see if he were interested in a residual

vacancy that was about to open up. Complainant confirmed that he was

interested in the position.

Accordingly, the agency mailed complainant a letter on August 30, 2007,

informing him to report to work on September 1, 2007. The letter was

mailed to complainant's last known address in California. The record

also reveals that the agency attempted to contact him on his local cell

phone number, but could not reach him.

On September 21, 2007, complainant finally contacted the New Orleans

facility. When asked why he did not return the cell phone calls,

complainant reportedly said, "You know how these phones are." During a

subsequent interview, complainant did not provide any assistance in

determining why he did not respond prior to September 21, 2007. As a

result of failing to report to work on September 1, 2007, complainant

was issued a Notice of Suspension for 7 Days.

On November 14, 2007, complainant filed an EEO complaint alleging that

he was discriminated against on the basis of reprisal for prior protected

EEO activity when:

1. the agency did not allow him to clock in on July 30 and July 31,

2007; and

2. on October 30, 2007, the agency issued him a 7-day suspension

for failure to report for duty.

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 timely

requested a hearing. On July 22, 2008, the agency filed a motion for a

decision without a hearing. Complainant did not respond. On September 9,

2008, the AJ issued a decision without a hearing.

In his decision, the AJ found complainant failed to establish a

prima facie case of reprisal because he failed to establish that the

responsible management officials were aware of his prior EEO activity.

The AJ further found complainant failed to establish causation, as more

than two years passed between his prior EEO activity and his suspension.

The AJ found that, even assuming complainant had established an

inference of discrimination, complainant failed to present sufficient

evidence that would establish the agency's reasons for its actions were

a pretext for discrimination. Specifically, the agency did not permit

complainant to clock in on July 30 and 31 because he was still assigned

to the California facility, and had no bid job in the Louisiana facility.

Further, complainant was notified to report for duty on September 1, 2007,

but failed to do so. He also failed to return several phone messages

that were left on his cell phone, and made no other effort to contact

the agency during the three weeks after he returned to New Orleans.

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.

CONTENTIONS ON APPEAL

On appeal, complainant states neither he nor his attorney was ever

advised of the time frame in which he needed to respond to the agency's

motion for a decision without a hearing, due to a series of hurricanes

that hit the Gulf Coast in the late summer of 2008. Furthermore, he

claims that some management officials have admitted they had knowledge

of complainant's prior EEO activity, and that the agency's suspension

was an act of reprisal.

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 EEOC Management Directive 110, 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").

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. 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).

After a review of the record, we find that the AJ was correct in

issuing a decision without a hearing, as complainant failed to present

sufficient facts that would establish a genuine dispute of material fact.

The record reveals that primary management officials involved in the

decision to suspend complainant were unaware of complainant's prior EEO

activity. Furthermore, complainant failed to present sufficient fact

that would suggest he was issued the discipline because of his prior

EEO activity, as opposed to his failure to maintain contact with the

New Orleans facility once he returned to New Orleans. Nothing in the

record supports the complainant's position that the hurricanes of late

August 2008 interfered with his ability to receive the agency's motion

for a decision without a hearing, which was mailed to both complainant

and his attorney on July 22, 2008.

CONCLUSION

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 action.

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

February 11, 2009

Date

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0120090256

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090256

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