01a00084
07-13-2000
Mark J. Fraser, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mark J. Fraser v. United States Postal Service
01A00084
July 13, 2000
Mark J. Fraser, )
Complainant, )
) Appeal No. 01A00084
v. ) Agency Nos. 1E-842-1007-96
) 1E-842-0002-97
) Hearing Nos. 350-99-8128X
) 350-99-8135X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of national origin (Outside Utah),
religion (Roman Catholic), sex (Male), reprisal (prior EEO activity),
and mental disability (Stress), in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether complainant has shown by preponderant
evidence that the alleged incidents constituted discrimination or
harassment against him on the bases of his sex, religion, mental
disability, national origin, and/or in reprisal for prior EEO activity.
BACKGROUND
The record reveals that complainant, a group leader data conversion
operator at the agency's encoding center in Salt Lake City, Utah, filed
a formal EEO complaint (complaint-1) with the agency on June 21, 1996.
In complaint-1, he alleged that the agency had discriminated against him
on the bases of sex, religion, and in reprisal<2> when on May 20, 1996,
upon his return from military duty, his duties were changed so that he
may not have any interaction with a particular co-worker who was also a
group leader. On September 13, 1996, the agency dismissed complaint-1
for failure to state a claim and for mootness. Complainant appealed
this decision to the Commission which reversed that agency's dismissal
finding that complainant did indeed state a claim relating to a term,
condition, or privilege of employment. The previous decision remanded
the complaint for investigation. The agency then accepted complaint-1
for investigation.
On February 19, 1997, complainant filed a second EEO complaint
(complaint-2) in which he alleged discrimination on the bases of sex,
national origin, disability, and reprisal when: (1) he was charged
0.50 units for lunch and 0.30 units of annual leave even though he did
not take a break for lunch; (2) he was issued a seven-day suspension;
and (3) subjected to a hostile work environment. The agency accepted
complaint-2 for investigation.
At the conclusion of the investigation of complaint-1, complainant
requested a hearing before an EEOC Administrative Judge (AJ). At a
pre-hearing conference, the AJ learned that complainant had filed
complaint-2. Accordingly, the AJ returned the investigative file to the
agency for supplemental information and directed the agency to return
the file to the AJ's office with the investigation file for complaint-2.
At the conclusion of the investigation of complaint-2, complainant
requested a hearing before an AJ. The AJ consolidated the complaints.
On July 6, 1999, the AJ issued his notice of intent to issue findings and
conclusions without a hearing. The AJ explained to the parties that there
were no genuine disputes of material fact or genuine credibility issues
to be resolved. The AJ instructed the parties to present additional
evidence and arguments on the merits of the case. On August 25, 1999,
the AJ issued Findings and Conclusions Without a Hearing, finding that
there are no genuine material disputes of fact or questions of credibility
to be determined at a hearing. The AJ also concluded that the agency
did not discriminate against complainant.
As to complaint-1, the AJ determined that complainant failed to allege an
injury which affected a term, condition, or privilege of his employment.
In particular, the AJ determined that complainant's claim was that he
was not to have personal or professional interaction with a co-worker
who had expressed reservations about working with complainant. The AJ
then found that this claim did not result in a loss of pay, discipline,
or impede complainant from performing his duties. Accordingly,
the AJ recommended that this complaint be dismissed pursuant to 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)).
As to complaint-2, the AJ determined that complainant failed to establish
by a preponderance of the evidence that the agency's actions were
discriminatory or constituted harassment. Initially, the AJ stated the
allocation of burdens and three-step order of presentation of proof in
Title VII and Rehabilitation Act cases. However, the AJ noted that if
the agency articulates a legitimate, nondiscriminatory reason for its
actions, the factual inquiry can proceed directly to the third step
of the three-step analysis which is whether complainant has shown by
preponderant evidence that the agency's actions were motivated by
discrimination. The AJ then concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions. As to claim
(1), the AJ found that responsible official charged complainant with
leave hours because complainant did not get prior authorization to avoid
taking a lunch break and was therefore charged with the leave for lunch.
As to claim (2) regarding his seven-day suspension, the agency stated
that complainant was issued the suspension because he failed to report
to work or make arrangements for leave during his absences from December
19, 1996 through January 6, 1997. As to complainant's claim (3) in
which he alleged that the agency's actions constituted harassment,
the AJ determined that the alleged events taken as a whole were not
sufficiently severe or pervasive to constitute harassment.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination and/or retaliation. In reaching this conclusion, the
AJ found that complainant failed to produce evidence which proves that
the alleged behavior was motivated against his sex, religion, national
origin, disability or reprisal. Accordingly, the AJ concluded that
complainant failed to prove by a preponderance of the evidence that the
agency discriminated against him.
The agency's final decision implemented the AJ's Findings and
Conclusions.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final decision.
ANALYSIS AND FINDINGS
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
After a careful review of the record, we find the AJ properly determined
that there was no genuine issue of material fact in this case.
Specifically, we find that complainant failed to set forth sufficient
facts showing that there was a genuine issue still in dispute. Moreover,
complainant failed to respond to the agency's Motion for Decision on
the Record and failed to provide in this appeal any evidence or argument
that material issues are in dispute. Therefore, we concur in the AJ's
determination and find that summary judgment was appropriate in this
case.
Based on our careful de novo review of the entire record before us,
the Commission finds that, as to complaint-2, the AJ's recommended
findings and conclusions properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
in complaint-2 were in retaliation for complainant's prior EEO activity
or were motivated by discriminatory animus toward complainant's sex,
national origin, or disability. We discern no basis to disturb the AJ's
recommended findings and conclusions regarding complaint-2.
As to complaint-1, the Commission further finds that the AJ erred in
recommending the dismissal of complaint-1 for failure to state a claim.
In Fraser v. United States Postal Serv., EEOC Appeal No. 01966826 (July
17, 1997), the Commission determined that complaint-1 stated a claim and
reversed the agency's decision to dismiss this complaint pursuant to 29
C.F.R. �1614.107(a)(1). The Commission has ruled on whether complaint-1
states a claim and therefore, we conclude that the Commission's
determination on this issue in Appeal No. 01966826 constitutes the "law
of the case.� Under the "law of the case" doctrine, legal or factual
determinations once made are generally binding in subsequent proceedings
in the same case. Plunkett v. United States Postal Serv., EEOC Request
No. 05920288 (May 14, 1992). Further, the record indicates that neither
party has requested reconsideration on this issue. Accordingly, the
Commission finds that the AJ erroneously found that complaint-1 failed
to state a claim.
The Commission has found that there is no genuine issue of material fact.
Therefore, we find it appropriate to determine whether complainant
established that the agency's action in complaint-1 was discriminatory
or retaliatory. Generally, discrimination claims are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F. 2d 1003 (1st
Cir. 1979). Complainant must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567
(1978). Next, the agency offers rebuttal to complainant's inference of
discrimination by articulating a legitimate, nondiscriminatory reason
for its action(s). See Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has
met its burden, the complainant bears the ultimate burden to persuade the
fact finder by a preponderance of the evidence that the reasons offered
by the agency were not the true reasons for its actions but rather were a
pretext for discrimination. St. Mary's Honor Cent. v. Hicks, 509 U.S. 502
(1993).
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he or she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id. See also Aikens, 460
U.S. at 714-717.
Upon review of the record, the Commission finds that the agency
a articulated legitimate, nondiscriminatory reason for changing
complainant's duties, namely that another group leader had requested that
complainant not have any sort of personal or professional interaction with
her. Complainant failed to prove the agency's reasoning was a pretext for
discrimination. Based upon de novo review of the record, the Commission
finds that complainant failed to establish by preponderant evidence that
the agency's action alleged in complaint-1 was discriminatory.
CONCLUSION
Therefore, after a careful review of the record, we affirm the agency's
final decision finding no discrimination or retaliation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 13, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record indicates that complainant filed a prior EEO complaint on
March 15, 1996.