0120093348
05-26-2011
John R. Stock, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
John R. Stock,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093348
Hearing No. 480-07-00607X
Agency No. 4E-890-0087-07
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s June 25, 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 Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. The appeal is deemed timely and is accepted
for de novo review, pursuant to 29 C.F.R. § 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency’s final order.
ISSUES PRESENTED
(1) Whether the EEOC Administrative Judge properly issued a decision
without a hearing in favor of the Agency.
(2) Whether Complainant met his burden of establishing that he was
subjected to unlawful harassment and discrimination.
BACKGROUND
On July 26, 2007, the Agency accepted for investigation the following
issue. Whether the Agency subjected Complainant to hostile work
environment harassment on the bases of race (Caucasian), color (white),
national origin (United States), sex (male), age (55), disability
(asthma), and reprisal for prior protected EEO activity when:
1. on or around February 15, 2007, management questioned Complainant about
a third-party allegation that he had threatened a co-worker; management
interrogated his friends about his personal life and whether he owned
firearms; management solicited a statement from a casual employee who
alleged sexual harassment by Complainant;
2. on or around June 28, 2007, the Agency charged Complainant with
Absence Without Leave;
3. on or around June 29, 2007, the Agency issued to Complainant a 30-day
notice of removal;
4. on or around July 3, 2007, the Agency informed Complainant that he
was not permitted to work as scheduled or to be on Agency property.
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. Over complainant’s objections, the AJ assigned to
the case granted the Agency’s motion for a decision without a hearing
and issued a decision without a hearing. The AJ found no discrimination
as to the entire 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. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant primarily argues that the AJ, who ultimately
granted the Agency’s motion for summary judgment, acted inappropriately
because the Administrative Judge initially assigned to the case (AJ-2)
had previously denied the Agency’s motion for summary judgment.
To support his argument, Complainant includes a June 24, 2008 notice
and order by AJ-2. AJ-2 wrote, in relevant part, “I have decided
that a hearing in this matter will not be necessary. My reasons for
this determination will be set forth fully in my formal decision which
will be issued hereafter. In the interim, the parties are encouraged
to engage in settlement discussions.”
Complainant also questions management’s application and reliance on
the last-chance agreement, arguing that it was an invalid agreement,
and that management erred in determining that he violated the last chance
agreement, thereby charging him with absence without leave and removing
him without prior warning. In particular, Complainant argues that the
agreement had been illegally formed because he had been denied his
right to have an attorney look over the “original base document prior
to affixing his signature,” and that “the later revised document
was also illegal as [Complainant] did not have a Union Representative
present” when he signed.
ANALYSIS AND FINDINGS
Initially, we address Complainant’s contention that the AJ acted
inappropriately because AJ-2 had previously denied the Agency’s motion
for summary judgment. We find that AJ-2’s notice and order did not
constitute a denial of the Agency’s motion for summary judgment, or
provide any indication that AJ-2 would ultimately rule in Complainant’s
favor. Rather, it indicated that AJ-2 intended to issue a decision
without a hearing. Subsequently, the AJ was assigned to the case and
issued summary judgment after reviewing the entire record. We find no
misconduct here.
We must first determine whether it was appropriate for the EEOC
Administrative Judge 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).
After a careful review of the record, the Commission finds that the
AJ’s decision referenced the appropriate regulations, policies, and
laws. Moreover, we find that the AJ properly issued a decision without
a hearing because Complainant failed to show that a genuine issue of
material fact exists or that there were any credibility determinations
such that a hearing on the merits is warranted.
Harassment
To establish a claim of harassment an employee must show that:
(1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on their statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the
incidents must have been “sufficiently severe or pervasive to alter
the conditions of [complainant’s] employment and create an abusive
working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). The harasser’s conduct should be evaluated from the objective
viewpoint of a reasonable person in the victim’s circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 at 6 (March 8, 1994).
Upon review of the record, we find that Complainant cannot establish
element (3), that the alleged unwelcome conduct was based on his race,
color, national origin, sex, age, disability, or in reprisal for prior
EEO activity. We also find no evidence that the matters set forth in
claim (1) were severe or pervasive enough to alter the conditions of
Complainant’s employment and create an abusive working environment.
We also note that management was legally obligated to investigate
an allegation of sexual harassment by Complainant after an employee
brought it to management’s attention, and that no corrective action
was ultimately taken against Complainant following the investigation.1
Disparate treatment: Claims (2), (3) and (4)
Assuming Complainant established prima facie cases of discrimination with
respect to all of his alleged bases, management officials proffered the
following nondiscriminatory, non-retaliatory reasons for their actions.
With respect to claim (2), management charged Complainant with absence
without leave because he had exhausted his leave under the Family
Medical Leave Act, and failed to bring in medical documentation to
substantiate his request for unscheduled sick leave. Regarding claim (3),
management removed Complainant because his absences violated the terms
of a last-chance agreement, which required him to maintain acceptable
attendance.2 Finally, with regard to claim (4), management felt it
would be appropriate for Complainant to remain off the premises pending
his removal from the Agency.
We find that Complainant did not establish pretext with respect to any
of these claims. On the contrary, to show that management’s actions
were motivated by his race, color, age, national origin, or previous EEO
activity, Complainant merely averred that one management official was
a Pacific Islander and “sees me as different from him.” Complainant
Affidavit (Aff.) at 7. He also stated that white males “are the bad
guys these days.” Id. Complainant also maintained that a female
concurring official “likes to dominate men.” Id. Moreover,
Complainant stated: “Management wants to show that a white man was
picking on an [A]sian woman so they can fire me.” Id. at 6. For age
discrimination, Complainant averred, “I think age was a factor in that
management wants to deny me my retirement as punishment.” Id. at 9.
For reprisal for prior EEO activity, Complainant could not remember
whether he ever spoke to the management official about his prior EEO
activity, or whether the management official ever asked him about his
prior EEO activity. Complainant’s Deposition at 16-17. At most,
Complainant stated that he had talked to the management official “now
and then,” “just saying hi, how’s it going. That’s about it.”
Id. at 16.
With respect to Complainant’s contentions on appeal concerning his
last chance agreement, we note that Complainant’s chosen representative
reviewed and consented to the terms of the settlement agreement and last
chance agreement. The record includes a September 14, 2006 transcript
of a hearing before an EEOC Administrative Judge. During the hearing,
the parties reached a settlement agreement. Present at this hearing
was Complainant’s representative. The AJ asked Complainant and his
representative whether they had a chance to review the modifications to
the settlement agreement, and whether they agreed that the modifications
were correct. Hearing Transcript 4. Both replied, “Yes.” Id.
The AJ then asked whether both Complainant and his representative
“had a chance to look at the Last Chance Settlement Agreement and
the modifications and you are in agreement with this being part of the
settlement agreement of this complaint?” Id. at 5. Both replied,
“Yes.” Id. After reading the terms of the agreement into the record,
the AJ asked Complainant: “[h]aving heard the review of documents,
do you also agree to those terms?” Id. at 10. Complainant replied,
“Yes.” Id.
We find that Complainant’s chosen representative reviewed and advised
Complainant of the terms of the settlement agreement and last chance
agreement, that both Complainant and his representative consented
to the terms of the settlement and last chance agreement, and that
management’s stated attempts to hold Complainant to the terms of the
last chance agreement constitute a legitimate, nondiscriminatory, and
non-retaliatory reasons for its actions.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final order,
because the AJ appropriately issued a decision without a hearing
and a preponderance of the record evidence does not establish that
discrimination occurred.
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
_5/26/11_________________
Date
1See Rogers v. Dep’t of Defense, EEOC Request No. 05940157 (February
24, 1995) (Commission found that a claim which arose from the agency’s
investigation of a complaint of harassment, failed to state a claim,
since the agency was legally obligated to investigate a complaint of
harassment).
2 The last-chance agreement provided, in relevant part, that
Complainant “must maintain acceptable attendance during the duration
of this agreement. . . . [Complainant] will have no more than two (2)
unscheduled absences during any 90-day period during the timeframe of
this Agreement. Unscheduled absences . . . are absences which are not
scheduled and approved in advance of the absence.” The last-chance
agreement provided that it “constitutes a last chance for [Complainant]
to correct . . . his attendance deficiencies.”
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120093348
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093348