0120111188
09-26-2012
Lee A. Charboneau, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Lee A. Charboneau,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120111188
Hearing No. 532-2009-00163X
Agency No. 4C-440-0107-09
DECISION
Complainant timely filed an appeal from the Agency's November 19, 2010, 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge properly issued a decision without a hearing on Complainant's claims that the Agency discriminated against him on the basis of race when it issued him a Letter of Warning and a Seven-Day Suspension, and on the bases of race and reprisal for prior protected EEO activity when it issued him a Notice of Removal; and (2) whether the AJ properly found that Complainant had not proven that he had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Puritas Park Branch in Cleveland, Ohio.
On April 19, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Caucasian) when:
1. on February 27, 2009, he was issued a Letter of Warning; and
2. on March 27, 2009, he was issued a Seven-Day Suspension.
Complainant subsequently amended his complaint to allege (3) that the Agency discriminated against him on the bases of race and reprisal for prior EEO activity when, on June 3, 2009, he was issued a Notice of Removal.
At the conclusion of the investigation, the Agency provided Complainant 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 December 29, 2009, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a Motion in Opposition on January 1, 2010; the Agency filed a response on January 29, 2010; and Complainant filed a reply to the Agency's response on February 6, 2010. The AJ granted the Agency's Motion and issued a decision without a hearing on November 9, 2010.
In her decision, the AJ found that Complainant's supervisor (S1) issued Complainant a February 27, 2009, Letter of Warning for improper conduct and failure to follow instructions. The Letter stated that, on February 14, 2009, Complainant continued to yell across the workroom floor after S1 told him to stop, intervened when S1 was giving instructions to another employee, and refused to return to his case after S1 instructed him to do so. Pursuant to a grievance procedure, the term of the Letter was reduced to six months.
On March 27, 2009, S1 issued Complainant a Seven-Day "No Time Off" Suspension for improper conduct and route deviation. The Suspension Notice stated that, on March 12, 2009, S1 saw Complainant at a barber shop that was not on his route. When S1 asked Complainant why he was at the barber shop, Complainant replied that he was taking an early lunch and getting his hair cut.
On May 29, 2009, S1 issued Complainant a Notice of Removal for unauthorized absence from assignment and failure to follow instructions. The Notice stated that, on April 23, 2009, Complainant was absent and did not complete a PS Form 3971 after a manager instructed him to do so. Pursuant to a June 30, 2009, pre-arbitration settlement agreement, the Suspension and Notice of Removal were combined and reduced to a Ten-Day Suspension that would remain in Complainant's file until March 3, 2010.
The AJ found that Complainant failed to establish a prima facie case of race discrimination because he failed to show a causal connection between his race and the disciplinary actions at issue. In that regard, she noted that Complainant presented no evidence that his race was a factor in the Agency's actions or that similarly-situated employees not of his protected group were treated differently under similar circumstances.
The AJ concluded that Complainant established a prima facie case of reprisal by showing that he engaged in protected activity when he filed this complaint, the Agency was aware of his protected activity, and the Agency issued the Notice of Removal within such time that retaliatory motivation can be inferred. The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for issuing the Notice of Removal. The Notice stated that Complainant had been absent from work for two hours, told managers he had taken his wife to the doctor, and did not complete a PS Form 3971 even though he was instructed to do so.
The AJ concluded that Complainant failed to show that the Agency's articulated reason was a pretext for discrimination. She noted that, although Complainant asserted that a supervisor (S2) authorized him to take his wife to the doctor, S2 did not authorize Complainant to do so on the clock. With respect to Complainant's argument that the existence of two removal notices was evidence of pretext, the AJ found that the Acting Manager of Customer Service Operations (MCSO) signed the removal notice for the Manager (M1) because M1 was on vacation when the Notice was issued. When M1 returned from vacation and saw that the original Notice did not list Complainant's prior discipline, she issued the second Notice to include the discipline.
Viewing the facts in the light most favorable to Complainant, the AJ concluded that Complainant did not establish that his race and prior EEO activity were factors in the Agency's actions. Accordingly, she found that the Agency did not discriminate against Complainant when it issued the disciplinary actions.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the evidence demonstrates that the Agency discriminated against him. He challenges the credibility of M1 and S1 with respect to M1's involvement in the discipline of other employees, S1's awareness of his prior EEO activity, and S1's description of the distance between the barber shop and Complainant's route. In addition, Complainant asserts that the investigative file contains a Notice of Removal, signed by M2, with a signature page that is different from the signature page on the Notice that he received.
In response, the Agency argues that the asserted discrepancies in the information provided by S1 and M1 are immaterial and that Complainant's arguments lack merit.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself 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 Chap. 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").
ANALYSIS AND FINDINGS
Decision without a Hearing
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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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 AJ's decision to issue a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's Motion for a Decision without a Hearing, and he responded to the Motion. Although Complainant challenges the accuracy of some of S1's and M1's statements, he has not shown that there were any material facts in dispute. Moreover, the AJ viewed the evidence in the light most favorable to Complainant when considering Complainant's allegations. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ properly issued 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 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence. Burdine, 450 U.S. at 256.
We assume for purposes of analysis, without so finding, that Complainant has established prima facie cases of race discrimination with respect to the Letter of Warning and Seven-Day Suspension and of race and reprisal discrimination with respect to the Notice of Removal.
The Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency issued the Letter of Warning because Complainant continued to yell across the workroom floor after being told to stop, intervened when S1 spoke to another employee, and refused to return to his case. Complainant received the Seven-Day Suspension because he stopped at a barbershop for a haircut. Finally, the Agency issued the Notice of Removal because Complainant was absent for two hours and failed to complete a PS Form 3971 to cover the absence.
Complainant has not shown the Agency's articulated reasons to be pretextual. He acknowledged that he engaged in the conduct for which he was disciplined. Although Complainant alleged that S1 treated some employees more harshly than others, he has not identified anyone who engaged in conduct similar to his but was not disciplined. There is no evidence that similarly-situated employees not of Complainant's protected groups were treated more favorably. Further, the existence of two Notices of Removal, one with the MCSO's signature and the other with M1's signature, does not establish that the Agency proposed to remove Complainant because of his membership in a protected group. Complainant has offered no evidence that the Agency's actions were motivated by considerations of race or reprisal. The AJ therefore properly determined that Complainant had not established his claim of discrimination.
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 order.
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 (Nov. 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
September 26, 2012
Date
2
0120111188
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111188