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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