01a54115
08-14-2006
Lovell Sims, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lovell Sims,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54115
Hearing No. 230-2005-00041X
Agency No. 4J-480-0053-04
DECISION
On May 18, 2005, complainant filed an appeal from the agency's May 5,
2005 Notice of 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Customer Service Manager in the agency's Flint Post Office,
Flint, Michigan. The record reveals that complainant was accused by
a subordinate employee of sexual harassment. The agency initiated an
investigation into the charges brought by the subordinate employee.
The record reveals that on February 2, 2004, the agency informed
complainant of the accusations and notified him that pending the
investigation, he would be reassigned to the Flint Main Office.
Complainant protested the reassignment and failed to report to the Flint
Main Office. Complainant went out on sick leave and subsequently retired
from the agency on disability retirement effective June 30, 2004.
On February 2, 2004, complainant contacted an EEO Counselor and filed
a formal EEO complaint dated March 15, 2004, alleging that he was
discriminated against on the bases of race (African-American), sex
(male), and reprisal for prior protected EEO activity under when:
(1) On November 6, 2003, the agency refused to investigate an employee
who is harassing complainant.
(2) On February 4, 2004, complainant was removed from the agency.
On April 15, 2004, the agency accepted the issue (2) for processing and
dismissed issue (1).
Thereafter, the agency conducted an investigation on the accepted
issue. 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. After both parties submitted motions for a
decision without a hearing, the AJ assigned to the case issued a decision
without a hearing on May 3, 2005. The AJ found that complainant failed to
establish that he was aggrieved by the agency's actions in this matter.
The AJ noted complainant is a management employee who was accused of
sexual harassment by a subordinate employee. The AJ recognized that in
response to the employee's allegation of sexual harassment, the agency
informed complainant of the allegation and that he would be reassigned
pending an administrative investigation. The AJ noted that complainant
objected to the reassignment and left work on sick leave never to return.
The AJ noted that complainant retired from his employment under disability
retirement. The AJ concluded the agency's action of informing complainant
that he would be reassigned pending an administrative investigation is
not an adverse action actionable under Title VII.
On May 5, 2005, the agency issued a Notice of Final Action fully
implementing the AJ's finding that complainant failed to prove that he
was subjected to discrimination as alleged.
On appeal complainant claims that the agency failed to conduct a full
investigation into his case.
ANALYSIS AND FINDINGS
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, we find that the record was fully developed. In particular,
we note that the record contains detailed affidavits from complainant,
the Postmaster and the Labor Relations Specialist. Further, the record
contains the February 27, 2004 fact finding report on the allegations
of inappropriate behavior by complainant made from the subordinate
employee. Additionally, complainant failed to identify any material
facts in dispute in his March 29, 2005 "I Am Motion for Findings and
Conclusions Without a Hearing in Favor of Complainant" or on appeal.
Therefore, we determine that there are no material facts in dispute.
Accordingly, we conclude that summary judgment was appropriate.
In the present case, we find that assuming complainant established a
prima facie case on the bases he alleged, the agency has articulated a
legitimate non-discriminatory reason for its action. Specifically, the
record reveals that complainant was temporarily reassigned to another
office while the agency investigated the serious sexual harassment
charges brought against him by a subordinate employee. We note that
once an employer is aware of sexual harassment, the employer is required
to take prompt and effective corrective action to stop the harassment.
In the present case, the agency's decision to reassign complainant
was for the stated purpose of separating complainant from the accusing
subordinate employee while the investigation was being taken. We find
complainant has failed to show that the agency's actions were motivated
by discriminatory animus.
We find that claim (1) was properly dismissed for failure to state a claim
because complainant has not shown that he was subjected to harassment.
Furthermore, we find that complainant has not shown that he was subjected
to discrimination in claim (1) because he failed to show how any of the
alleged incidents were motivated by discrimination.
CONCLUSION
Accordingly, the agency's notice of final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 14, 2006
__________________
Date
2
01A54115
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
01A54115