0120090055
02-18-2009
Jose Joseph, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose Joseph,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090055
Hearing No. 510-2008-00036X
Agency No. 1H-336-0040-07
DECISION
On September 26, 2008, complainant filed an appeal from the agency's
September 5, 2008 final action 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. For the following reasons, the Commission AFFIRMS the
agency's final action.
At the time of events giving rise to this complaint, complainant worked
as an Electronic Technician at the agency's work facility in Tampa,
Florida.
On June 21, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of his national origin (India) and
color (unspecified) when on March 27, 2007, he was given an investigative
interview and subsequently issued a Letter of Warning on April 11, 2007.
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 the complainant's objections, the AJ assigned
to the case granted the agency's Motion for Decision Without a Hearing
and issued a decision without a hearing on August 28, 2008.
The AJ noted that on March 1, 2007, complainant and another coworker were
directed to replace the belt on a machine by their Supervisor. The AJ
stated that following their initial refusal to comply based on their
inability to locate a replacement part, the subordinate employees were
provided with the appropriate part and written instructions to perform
the work requested. According to the Supervisor, there was a further
delay and complainant evidently became frustrated with the situation,
behaving in an appropriate manner, including throwing things and using
profanity. The AJ noted that on March 15, 2007, complainant was found
performing work not assigned to him. According to the agency, despite
being assigned other work and despite being aware of the importance of the
assignment, complainant chose to work on the other nonessential matters.
Based on these incidents, complainant received an official discussion
on March 16, 2007.
On March 27, 2007, an investigative interview was conducted regarding
complainant's alleged failure to follow instructions on March 16, 2007.
The AJ stated that according to the Supervisor, he was advised by another
Supervisor that complainant failed to respond to a service call on March
16, 2007. The AJ noted that complainant's Supervisor determined in light
of this incident and in combination with the aforementioned incidents
that resulted in an official discussion, further disciplinary action
was warranted. Therefore, an investigative interview was conducted and
complainant was questioned regarding his alleged delinquent conduct.
The AJ noted that during the investigative interview complainant
maintained that he did not specifically remember the events at issue.
Complainant was subsequently issued a Letter of Warning.
The AJ observed that there is no real dispute that complainant refused
to respond to the service call. The AJ further noted that no other
similarly situated employee refused to respond to a service call during
the same time frame, under the same management officials, but did not
receive disciplinary action. Therefore, the AJ found that complainant
failed to establish a prima facie case of discrimination. The AJ further
found that the agency articulated a legitimate, nondiscriminatory reason
for taking the actions in question. The agency stated that complainant
engaged in repeated and serious misconduct. Specifically, complainant
was cited for refusing to perform the work assigned, including not
responding to a service call and working on unassigned duties. The AJ
found that complainant failed to establish that the agency's articulated
reason for its actions was pretextual and that the measures taken by
the agency were due to his own failure to follow instructions. The AJ
recognized that complainant failed to show that the agency's decision
to discipline him was unreasonable under the circumstances, or that it
was based on anything other than business needs.
The agency subsequently issued its final action fully implementing the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged.
On appeal, complainant contends that comparison employees who were
similarly situated and reported to the same supervisor, and performed
the same function received no discipline for the exact same incident.
Complainant maintains that two comparison employees were assigned to the
Automatic Package Processing System #1 at the relevant time and failed
to answer the 11:00 a.m. service call. Complainant maintains that they
failed to follow instructions and did not report to the service call as
instructed and that they received no discipline.
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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review, we find the AJ properly issued summary judgment as there are
no genuine issues of material fact in dispute. We shall assume, arguendo,
that complainant established a prima facie case of discrimination on the
alleged bases with regard to receiving an investigative interview and a
Letter of Warning. The agency stated that it conducted an investigative
interview with complainant and subsequently issued a Letter of Warning
based on complainant's repeated and serious misconduct. The agency
stated that complainant refused to perform the work assigned, including
not responding to a service call and working on unassigned duties.
We find that the agency has articulated legitimate, nondiscriminatory
reasons for its actions.
With regard to complainant's attempt to show pretext set forth on appeal,
we find that complainant has not disproved the agency's explanation that
he engaged in repeated and serious misconduct. Complainant maintains
that he was the only foreign national working on automated equipment from
0500 to 1350 hours. According to complainant, two white employees not
of Indian descent did not receive an investigative interview despite the
fact that they were responsible for Automated Package Processing System
#1 at 1100 hours. Complainant notes that on March 16, 2007, he was on
Automatic Processing System #2 at 1100 hours and maintains that there is
no active mail processing on that machine at that time. The Supervisor
explained that the comparisons cited by complainant to his knowledge have
never failed to report to a machine when called and that there have not
been any complaints from their supervisors. The Supervisor who requested
that complainant perform the service call stated in his affidavit that
complainant's Letter of Warning mistakenly referenced the jam time as
1100 hours. He stated that the jam on Automated Package Processing
System #2 lasted for four minutes and 18 seconds and occurred between
0600 and 0900 hours, which is when complainant was called to report to
the machine. This supervisor explained that the two comparisons were
working the maintenance window on the Automatic Package Processing System
#1 and since complainant was assigned on Automatic Package Processing
System #2 that is why he was called to remove the jam. Complainant has
not shown that he was justified in refusing to respond to the service
call and he has not shown that similarly situated individuals were
treated differently. Therefore, we find that complainant has failed to
establish pretext.
The agency's final action finding no discrimination is hereby AFFIRMED.
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 18, 2009
__________________
Date
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0120090055
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090055