0120080526
10-21-2009
Julio Gomez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Julio Gomez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120080526
Hearing No. 520-2007-00095X
Agency No. 1A118002506
DECISION
On November 10, 2007, complainant filed an appeal from the agency's
October 12, 2007 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Tractor Trailer Operator at the agency's Mid-Island Processing
and Distribution Center in Melville, New York. On August 24, 2006,
complainant filed an EEO complaint alleging that he was discriminated
against and subjected to intimidation and harassment on the bases of race
(Hispanic), age (58), and in reprisal for prior protected EEO activity1
when on April 5, 2006, he received a Notice of 7-Day Suspension for
Failure to be Regular in Attendance and Failure to Follow Instructions.
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. Additionally, complainant motioned to amend
his complaint to include the allegations of reprisal-based harassment
regarding the REDRESS mediation. Complainant claimed that he was "tricked
into agreeing to participate in REDRESS mediation and was tricked into
agreeing to participate in redress, at which appropriate management
was not in attendance, and [f]urthermore [agency] representative would
not agree to the redress form." Comp.'s Motion to Amend, at 3. The AJ
declined to grant the motion.
On June 20, 2007, the AJ assigned to the case issued both parties notice
of her intention to issue a decision without a hearing. After receiving
only a response from the agency, the AJ determined that the complaint
did not warrant a hearing and issued a decision without a hearing on
September 25, 2007. Initially, the AJ found that complainant failed
to establish a prima facie case of discrimination on the basis of race
and age. The AJ found that complainant failed to identify a similarly
situated employee outside his protected group who engaged in excessive
absences and failed to follow instructions and yet, was not disciplined.
The AJ therefore found that complainant had not established a prima facie
case of discrimination on the bases of race and age. As to reprisal, the
AJ found that complainant had no previous EEO activity and complainant's
supervisors were not aware of any previous EEO activity by complainant.
The AJ therefore found that complainant had not established a prima
facie case of discrimination on the basis of reprisal.
As to harassment, the AJ found that complainant was not subjected to
a hostile work environment when he was disciplined for his absences.
The AJ found that complainant had excessive absences and his allegations
of harassment are based on the issuance of discipline. The AJ found that
the claims did not amount to harassment and did not rise to the level
necessary to be considered a hostile work environment. The AJ therefore
found complainant had not been subjected to a hostile work environment.
The AJ concluded that no material facts were in dispute and complainant
had failed to show that the agency discriminated against and subjected him
to a hostile work environment on the bases of race, reprisal, and age.
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 claims that the AJ erred in issuing a decision
without a hearing as the record contained conflicting material facts.
Further, complainant claims that the AJ ignored his Motion for Amendment
dated February 16, 2007 and evidence included in his Motion to Supplement
the Investigative Record dated May 17, 2007. The agency requests that
we affirm the final order.
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).
In the instant case, we find that the record was adequately developed
for the AJ to issue a decision without a hearing.
Disparate Treatment
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We concur with the AJ's determination that the agency provided
legitimate, nondiscriminatory reasons for issuing complainant the
Notice of 7-Day Suspension. Specifically, S1 claims that complainant
was issued the suspension because of his chronic and excessive abuse
of unscheduled absences. Report of Investigation (ROI), Aff. B, at 1.
Further, S1 claims that complainant failed to notify the proper postal
officials of those absences and the reasons for the absences. Id.
Finally, S1 claims that complainant was issued repeated warnings and
prior discipline for the same infractions. Id. S1 presented evidence
of numerous co-workers outside complainant's protected group who were
all issued similar punishments for similar infractions. The concurring
official (CO) claims that the issuance of the Notice of 7-Day Suspension
was administratively correct. ROI, Aff. C, at 1. Both S1 and CO cite
provisions in the Employee and Labor Relations Manual as the applicable
policies and regulations used as guidance in issuing the Notice of
7-Day Suspension. ROI, Aff. B, at 2; ROI, Aff. C, at 1.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, petitioner now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Petitioner can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
Complainant disputes the reasons given for his suspension, by asserting
generally that the absences in question were approved. ROI, Aff. A,
at 2. Complainant however has produced no evidence in support of
this claim. Mere allegations or denials are not enough to prevent
a decision without a hearing. Complainant "must do more than simply
show that there is some metaphysical doubt as to the material facts."
Smith v. Social Security Administration, EEOC Appeal No. 01A42757 (June
29, 2004) (quoting Matsushita Electrical Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)). As to complainant's claims that
the AJ ignored his Motion to Supplement the Investigative Record, we
find nothing in the record indicating that the AJ failed to give the
supplied evidence its proper weight. Construing the evidence in the
light most favorable to complainant, complainant has failed to show by a
preponderance of the evidence that the agency's reasons were pretext for
prohibited discrimination. Aside from complainant's bare assertions,
the record is devoid of any persuasive evidence that could establish
pretext or discriminatory animus on the part of the agency. Accordingly,
we find that complainant has failed to produce any evidence establishing
that he was discriminated against on the alleged bases.
Harassment/Hostile Work Environment
It is well-settled that harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
or religion is unlawful, if it is sufficiently severe or pervasive.
Hurston v. United States Postal Service, Appeal No. 01986458 (January 19,
2001), (citing, Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (August 14, 1998)). To establish a prima facie case of
hostile work environment harassment, a complainant must show that (1)
s/he belongs to a statutorily protected class; (2) s/he was subjected to
harassment in the form of unwelcome verbal or physical conduct because
of her/his protected class; (3) the harassment complained of was based
on her/his 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. See 29 C.F.R. �
1604.11; Davis v. Army, EEOC Appeal Nos. 01A24469, 01A20558 (November 14,
2003).
A complainant must show that the actions complained of were taken
because of or based on her/his protected status and are sufficiently
patterned or pervasive; usually, a single incident or a group of isolated,
discrete incidents will not be regarded as discriminatory harassment.
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
An abusive or hostile work environment exists "when the workplace is
permeated with discriminatory intimidation, ridicule and insult that is
sufficiently severe or pervasive to alter the condition of the victim's
employment." Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
An alteration to an employee's working conditions exists if a tangible,
discrete employment action is taken, e.g., hiring, firing, transfer,
promotion, non-selection, or the agency's actions were sufficiently
severe and/or pervasive to create a hostile work environment.
Regarding complainant's argument that the AJ ignored his request to amend,
we find that by not granting complainant's motion, the AJ effectively
denied the request to amend his complaint. According to 29 C.F.R. �
1614.106(d), "[a]fter requesting a hearing, a complainant may file a
motion with the Administrative Judge to amend a complainant to include
issues or claims like or related to those raised in the complaint."
A fair reading of complainant's complaint and motion to amend reveals
that complainant alleges reprisal harassment occurred during his
participation in the REDRESS mediation process. Complainant claims that
he was tricked into participating in REDRESS and was displeased with
the mediation outcome. Comp.'s Motion to Amend, at 2. Nonetheless,
we find no reason to disturb the AJ's decision to deny complainant's
motion to amend. EEOC regulations require the dismissal of complaints
that fail to state a claim. 29 C.F.R. � 1614.107(a)(1). To state a
claim, complainant must allege harm to a term, condition, or privilege of
employment on the basis of race, color, religion, sex, national origin,
age, disabling condition, or reprisal for prior protected activity.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). After a review of the record, we find that complainant failed to
specify any personal loss or harm that he suffered with respect to a term,
condition or privilege of employment as a result of the alleged incident.
See Scsavnicki v. U.S. Postal Service, EEOC Appeal No. 0120070881 (October
2, 2007); Flynn v. U.S. Postal Service, EEOC Appeal No. 0120071071 (May
6, 2009) (stating that unhappiness about outcome of REDRESS mediation
or non-attendance of agency officials during mediation session failed
to state a claim).
Complainant has presented no evidence establishing that the agency's
reasons are pretextual. Even accepting as true complainant's allegation
that the environment was hostile, the record does not support a finding
of discriminatory hostility. At all times, the ultimate burden of
persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated
by intentional discrimination. Complainant failed to carry this burden.
Accordingly, complainant has not shown that he was subjected to a hostile
work environment on the alleged bases.
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
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
October 21, 2009_
Date
1 The record reveals that complainant had no prior protected EEO activity
prior to the instant complaint. On the back of his formal complaint,
complainant made allegations regarding his participation in REDRESS
mediation and stated his intention to amend the complaint at a later time.
Despite his later attempts, the agency failed to amend his complaint to
include the allegations.
??
??
??
??
2
0120080526
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120080526