0120150247
03-08-2017
Melvin S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melvin S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120150247
Hearing No. 443-2014-00091X
Agency No. 1J-601-0021-13
DECISION
On October 17, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 8, 2014, 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. This 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 an Equal Employment Opportunity Administrative Judge (AJ) decision to issue a decision without a hearing was proper; and (2) whether Complainant established reprisal discrimination by preponderant evidence.
BACKGROUND
During the period at issue, Complainant worked as a Tractor Trailer Operator, PS-8 at the Agency's Carol Stream Processing and Distribution Center facility in Illinois. On July 9, 2013, he filed an EEO complaint alleging discrimination when on: (1) May 8, 2013, a co-worker (CW) attacked, threatened, and swore at him; (2) May 23, 2013, he was issued a 14-day suspension; and (3) June 26, 2013, his locker was vandalized. The Agency accepted the complaint for investigation.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Administrative Judge or an immediate decision from the Agency based on the ROI. Complainant requested a hearing. Therefore, his case was forwarded to the appropriate EEOC District Office and assigned to the AJ.
On July 14, 2014, the Agency filed a motion for a decision without a hearing to which Complainant did not respond. The AJ granted the Agency's motion and, on October 2, 2014, issued a decision finding that Complainant did not establish discrimination as alleged. On October 8, 2014, the Agency issued a final order adopting fully the AJ's decision. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
To support his appeal, Complainant provided signed, but unsworn, statements from two employees who appear to suggest that Complainant's first-line supervisor (S1) and another official engaged in discriminatory behavior. He also provided information from a confidential settlement agreement, which involved a prior EEO complaint. For its part, the Agency requests that we uphold the AJ's decision.
ANALYSIS AND FINDINGS
Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds 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, 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.
In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only after determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Thus, we find that the AJ's decision to issue a ruling without a hearing was proper.
Harassment
Complainant alleges he was harassed when CW attacked, threatened, and swore at him. To establish a claim of retaliatory harassment, Complainant must show that: (1) he engaged in prior protected EEO activity; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the prior protected EEO activity; (3) the harassment complained of was based on his prior protected EEO activity; (4) the harassment was sufficiently material to deter protected EEO activity in the given context ; and (5) there is a basis for imputing liability to the employer. See generally Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, at II.B.3 (Aug. 25, 2016).
Regarding this claim, the AJ found that the incident at issue, though isolated, was arguable severe enough to constitute harassment. She further found that Complainant and CW had a two-year history of animosity long before Complainant engaged in prior EEO activity. She went on to find that both parties entered into a settlement agreement in which they agreed to stay away from each other. Assuming this information in the light most favorable to Complainant, the AJ determined that Complainant presented no evidence indicating that CW engaged in the conduct at issue because of Complainant's prior EEO activity. Therefore, she ruled that Complainant failed to put forth any evidence of retaliatory harassment but instead found that the evidentiary record showed the harassing event stemmed from personal hostilities between the two colleagues. Upon review, the Commission agrees with the AJ and finds that Complainant did not establish that the harassment to which he was allegedly subjected was based on his prior EEO activity.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. For purposes of this decision, we will assume that Complainant has established a prima facie case of retaliation.
We now look to whether the Agency stated legitimate, nondiscriminatory reasons for its actions. The Agency stated that Complainant was given a 14-day suspension (Claim 2) stemming from his involvement in the confrontation with CW. The AJ found that both employees, Complainant and CW, were suspended pursuant to the Agency's Zero Tolerance Policy as it was impossible to determine which employee was the aggressor because there were no witnesses present to observe what actually occurred.
Regarding Claim 3, the Agency investigated the vandalism of Complainant's locker by interviewing Complainant and other drivers but only obtained inconclusive information. The AJ noted that Complainant had an opportunity to respond to the Agency's Motion for a Decision without a hearing but chose not to do so. The AJ determined that the Agency met its burden of providing legitimate, nondiscriminatory reasons for its actions.
In the final step of a disparate treatment analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail on his claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this by showing that the Agency's explanations are unworthy of credence and that its actions were influenced by impermissible criteria, i.e., animus toward his prior EEO activity.
Here, the AJ found that Complainant offered no evidence, other his own belief, to demonstrate that the Agency's explanations for its actions were retaliatory. However, such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has failed to meet his burden to show that the Agency's stated reasons for Claims 2 and 3 were pretextual.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision without a hearing was proper; and that Complainant did not establish reprisal discrimination by preponderant evidence. Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_3/8/17_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Claim (1) will be addressed under an harassment analysis; claims (2) and (3) will be analyzed under a disparate treatment analysis.
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