0120093374
11-17-2009
John Z. Sisneros, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
John Z. Sisneros,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120093374
Hearing No. 540-2006-00169X
Agency No. 4G870003706
DECISION
On August 8, 2009, complainant filed an appeal from the agency's July
9, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and 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
The issue presented herein is whether the EEOC Administrative Judge (AJ)
properly issued a decision without a hearing finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Carrier Technician at the agency's Uptown Station facility in
Albuquerque, New Mexico. The record indicates that on December 20,
2005, the Station Manager gave a stand up talk to the carriers regarding
new procedures at the station. During the talk, complainant became
irate. The Station Manager ordered complainant off the workroom floor.
When complainant ignored the order, the Station Manager tapped him on
his shoulder. Complainant indicated that the Station Manager assaulted
him when she touched him. Complainant left work and returned with a
note from his doctor stating that he needed to be off work for thirty
(30) days.
On May 8, 2006, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of national origin (Hispanic)1, sex
(male), color (dark brown), and age (DOB: December 9, 1961) when, on
December 21, 2005, he was physically assaulted by the Station Manager.
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. The record indicates that the agency moved to have
the matter dismissed for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). AJ1 issued a decision denying the agency's motion to
dismiss the matter. AJ1 indicated that the alleged physical assault was
sufficiently severe to state a claim upon which relief can be granted.
As such, the AJ determined that the matter should not be dismissed.
AJ1's decision was affirmed by another AJ, AJ2.
The matter was then assigned to a new AJ, namely AJ3. On June 11, 2009,
AJ3 issued a notice to the parties indicating his intent to issue a
decision without a hearing. On June 16, 2009, the agency filed a motion
in support of AJ3's decision to issue a decision without a hearing.
Complainant also responded on June 22, 2009, requesting that the matter
go forward to a hearing.
AJ3 issued a decision without a hearing on July 1, 2009. AJ3 determined
that there were no facts in dispute. Further, AJ3 indicated that
complainant failed to establish a prima facie case of harassment.
Specifically, AJ3 found that the alleged assault did not occur because of
complainant's protected bases. As such, AJ3 concluded that complainant
failed to show that he was subjected to unlawful harassment. The agency
subsequently issued a final order adopting AJ3's finding that complainant
failed to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant asserted that AJ3 improperly issued a decision
without a hearing. Complainant cited to the decisions by AJ1 and AJ2
indicating that the matter should go forward to a hearing. As such,
complainant requests that the Commission reject AJ3's decision.
ANALYSIS AND FINDINGS
As an initial matter, the Commission notes that complainant has confused
the decisions by AJ1 and AJ2 for decisions regarding whether a hearing
is needed in the case at hand. We note that the agency filed a motion
to dismiss the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim of harassment. The decisions by AJ1 and AJ2
determined whether complainant's harassment complaint, assumed to be true,
were sufficient to state a hostile or abusive work environment claim.
See Estate of Routson v. National Aeronautics and Space Administration,
EEOC Request No. 05970388 (February 26, 1999). In determining whether
an objectively hostile or abusive work environment existed, the trier of
fact should consider whether a reasonable person in the complainant's
circumstances would have found the alleged behavior to be hostile or
abusive. The decisions by AJ1 and AJ2 did not find that a hearing was
warranted or not.
Summary Judgment
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).
Upon review of the record, we find that there are no material facts
in dispute. We shall, for purposes of analysis, that the touch by the
Station Manager constituted an assault as stated by complainant.
Harassment
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review of the record, we find that complainant has not shown that
the alleged assault constituted unlawful harassment. As noted above,
complainant must show that he was subjected to harassment based on his
statutorily protected classes. Here, complainant has not presented any
evidence or argument to prove that the alleged assault occurred due to
his sex, national origin, color and/or age. As such, we find that AJ3
properly concluded that complainant had not established his claim of
unlawful harassment.
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
adoption of AJ3's findings and conclusions.
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
__________________
Date
November 17, 2009
1 Although complainant also alleged discrimination on the basis of race
(Hispanic), the Commission notes that it considers the term "Hispanic"
to be a national origin rather than a racial group.
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0120093374
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093374