0120073998
03-20-2009
Norma Brandon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Norma Brandon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120073998
Hearing No. 550-2007-00337X
Agency No. 4F-940-0021-07
DECISION
On September 10, 2007, complainant filed an appeal from the agency's
August 14, 2007 final order concerning her 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 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.
At the time of events giving rise to this complaint, complainant worked
as a full-time Sales, Service and Distribution Associate at the Rincon
Finance Station in San Francisco, California. On February 13, 2007,
complainant filed an EEO complaint alleging that she was discriminated
against and harassed on the bases of national origin (Phillipines),
disability, and reprisal for prior protected EEO activity [arising under
Title VII] when, on November 3, 2006 she was issued a Notice of 7-day or
less suspension for unprofessional conduct and threatening a co-worker.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case issued a "Notice of
Intent to Consider Issuance of a Decision Without a Hearing and Order"
on July 19, 2007. When complainant did not file a timely reply, the AJ
issued a decision without a hearing on August 8, 2007.
The AJ found that complainant did not establish that she is a qualified
individual with a disability, nor did she establish a nexus between her
prior EEO activity and the challenged action. The AJ nevertheless assumed
that complainant could establish a prima facie case of discrimination
on the alleged bases, and found that the agency articulated legitimate
nondiscriminatory reasons for its actions. Specifically, on October 5,
2006, complainant allegedly called a co-worker (C1) (who was conducting
business on the phone) a "S--thead, Hell of Lazy, a Hypocrite" and said he
did not know what he is doing and that he was "weak." Complainant threw
a cup of coffee into the trash can near the T- 6 desk which spilled onto
the floor, the desk and onto C1.1 Complainant then punched a box on the
wall and told C1 that she wished it was his head.2 The evidence shows
that complainant's violent behavior and verbal threats violated the
agency's zero tolerance policy for violence in the workplace. The AJ
found that complainant failed to establish pretext, by a preponderance
of the evidence. The AJ further found that complainant did not allege
harassment severe or pervasive enough to be considered unlawful.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
On appeal, complainant asserts that due to her medical condition, she
was unable to submit a timely response to the AJ's Notice of Intent to
Issue a Decision Without a Hearing.3 She asks the Commission to remand
the case for a hearing, so that the AJ may make findings concerning
credibility of certain witnesses. She attaches a copy of her Response,
which indicates among other things, that contrary to what the AJ had
indicated in the Notice of Intent, she did in fact submit an affidavit
dated April 23, 2007 to the EEO Investigator.4 In reply, the agency
asks the Commission to affirm the final order.
Initially, we note that complainant herself asserts that she had a
representative who was helping her with her Response to the AJ's Notice
of Intent, and she provides no explanation for why the representative
could not have mailed the Response for her, instead of her teenage
daughter. In any event, we find that the AJ did not abuse his discretion
in refusing to allow complainant to submit an untimely Response to
his Notice of Intent. Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000).
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).
It was proper for the AJ to issue a decision in this case without first
holding a hearing.
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).
Complainant asserts in her affidavit that co-workers, not in her protected
classes, were not subjected to equal discipline when they committed
equal or worse conduct violations. The record evidence does not support
this claim. Assuming complainant could establish a prima facie case of
discrimination or retaliation, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Complainant essentially
acknowledged she committed the misconduct alleged, and we find that
she has failed to present any persuasive evidence that such reasons are
merely pretext for discriminatory or retaliatory animus.5 Based on a
thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the 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:
March 20, 2009
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 In her "Day in Court" complainant responded to this allegation by
stating "I don't remember throwing it. If I did, I am sorry." Report of
Investigation (ROI), Exhibit 6, at 8.
2 Complainant indicated "I wouldn't threaten [C1]" in response to
this allegation. Id.
3 Complainant states that due to symptoms of her disability she entrusted
the mailing of her Response to her teenage daughter, who failed to mail
the Response in a timely manner.
4 We note that in his decision, the AJ noted that he did in fact consider
complainant's affidavit.
5 To the extent that complainant is asserting that her conduct was
caused by her disability, we note that even assuming that complainant
is disabled, the Commission's Enforcement Guidance on the Americans
with Disabilities Act and Psychiatric Disabilities (March 25, 1997) at
Question 30 specifically indicates that an employer may discipline an
individual with a disability for violating work place conduct standards
even if the misconduct results from a disability.
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0120073998
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013