0120072336
08-02-2007
Paul A. Grzesiak, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul A. Grzesiak,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072336
Hearing No. 471200700015X
Agency No. 1J489000106
DECISION
On April 12, 2007, complainant filed an appeal from the agency's March
13, 2007, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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.
ISSUE PRESENTED
The issue presented herein is whether complainant was discriminated
against on the bases of sex (male), age (D.O.B. 06/25/56), and reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 and the Age Discrimination in Employment Act of 1967 when
he received notice that his bid assignment was being changed from manual
to automation and when he was denied leave.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a full-time, Mail Processing Clerk at the agency's Processing
and Distribution Center in Saginaw, Michigan. For ten years prior to
October 1, 2005, complainant's principal area of assignment consisted of
manual work. In August 2005, complainant successfully bid on a new job
assignment. The job assignment had been previously vacated by a female
employee. The bid award notice, effective October 1, 2005 stated, in
pertinent part: "Comments: Basic Duties: Box Section and Automation,
will work where needed."
On October 17, 2005, complainant requested leave for November 25, 2005,
the Friday after the Thanksgiving Holiday. Complainant's request was
denied. Complainant's supervisor noted on his Form PS 3971 that his
request was denied because no other leave was available during prime
vacation time, which was the week of November 20th through November
27th. The maximum number of employees who could take leave during prime
vacation time was fifteen. All such slots were filled in March 2005.
On March 1, 2006, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of sex (male), age (D.O.B. 06/25/56),
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 and the Age Discrimination in Employment Act
of 1967 when:
1. On November 17, 2005, complainant received a notice that his principal
area of assignment was being changed from manual to automation; and
2. On November 25, 2005, complainant was denied annual leave and leave
without pay.
On March 8, 2006, the agency issued a final decision dismissing
both claims for failure to state a claim. The agency determined that
complainant did not show that he suffered a tangible employment action,
because changes in work schedules, locations or job duties do not render
an employee aggrieved. On July 28, 2006, the Commission reversed the
final agency's dismissal of complainant's complaint and remanded it to the
agency for further processing in accordance with the order. EEOC Appeal
No. 01A62710 (July 28, 2006). Specifically, we found that complainant's
claims are sufficient to render him and aggrieved employee and, therefore,
his claims are within the purview of EEOC regulations. Id. Thereafter,
complainant timely requested a hearing before an Administrative Judge
(AJ). When the complainant did not object, the AJ assigned to the case
granted the agency's January 25, 2007 motion for a decision without a
hearing and issued a decision without a hearing on February 27, 2007. The
agency subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that he was subjected to discrimination as
alleged. Specifically, the AJ found that complainant failed to establish
a prima facie case on any basis with regard to either of his claims.
CONTENTIONS ON APPEAL
Complainant contends on appeal that the "tactics of intimidation
and harassment by U.S. Postal Service management have increased in
severity and in frequency," and describes two incidents in support of
his allegation. The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
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).
The Commission finds that summary judgment was proper because the
record contains all the information necessary to enable an accurate
adjudication of the complaint on its merits. We find that the AJ
appropriately determined that complainant failed to proffer evidence to
establish that a genuine issue of material fact exists. In so finding,
we note that taking the facts in the light most favorable to complainant
he failed to established a prima facie case of discrimination on the
basis of sex, age, or retaliation.
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). Though proof of a prima
facie case will vary depending on the facts of the particular case, a
complainant must ordinarily demonstrate that similarly situated employees
outside her protected class were treated more favorably. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
With respect to complainant's sex discrimination claim, the Commission
concurs with the AJ's finding that complainant failed to establish a
prima facie case because he did not demonstrate by a preponderance of the
evidence that similarly situated employees outside his protected class
were treated differently. The Commission has held that in order to be
considered "similarly situated," employees must be similarly situated
in all relevant aspects of their employment, i.e., subject to the
same supervisor, perform the same job function, work on the same tour
of duty, and be subject to the same terms and conditions. See O'Neal
v. United States Postal Service, EEOC Request No. 05910490 (July 23,
1991). Complainant proffered that the female employee who held the
position immediately before him was not required to perform automated
duties. The record indicates, however that the bid assignment awarded
to the comparator identified different job duties. Specifically, her bid
assignment award identified her duties as "boxes" whereas complainant's
bid assignment awarded identified his job duties as "box section and
automation, will work where needed." Therefore, complainant's comparator
is not similarly situated because she was not subject to the same terms
and conditions.
Additionally, the record indicates that four females were all required by
the same decision-maker to work the day after Thanksgiving. Complainant
alleges that these individuals were treated more favorably because they
were granted annual leave on unspecified occasions. The record reflects
that they were not similarly situated because they were not granted
annual leave on November 25, 2005. Further, there is no evidence that
they were granted leave at any point during prime vacation time.
With respect to complainant's age discrimination claim, the Commission
concurs with the AJ's finding that complainant failed to establish a
prima facie case because he did not demonstrate by a preponderance of
the evidence that similarly situated employees who are significantly
younger were treated differently. Complainant failed to proffer the
existence of any similarly situated comparators.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment. Whitmire
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000).
It is well-settled that a nexus may be shown by evidence that the
adverse treatment followed the protected activity within such a period
of time and in such a manner that a retaliatory motive is inferred. The
Supreme Court has held that the temporal proximity between an employer's
knowledge of protected activity and the adverse employment action must be
"very close." See Clark County School District v. Breeden, 532 U.S. 268
(2001) (holding that a three month time period was not proximate enough
to establish a causal nexus). In this case, complainant's most recent
EEO activity was a complaint settled in February 2005, approximately
nine months prior to the date of the alleged incident of discrimination
in this case. Therefore, we find that the alleged discriminatory conduct
in the instant case did not follow the prior protected activity within
such a period of time that a reprisal motive can be inferred.
On appeal, complainant appears to make a harassment based on retaliation
claim, alleging that another supervisor spoke to him in a menacing tone
and that he was denied training. Consistent with the Commission's policy
and practice of determining whether a complainant's harassment claims
are sufficient to state a hostile or abusive work environment claim,
the Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to state
a harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human
Services, EEOC Request No. 05940481 (February 16, 1995). Even when viewed
within the context of complainant's original claims and in a light most
favorable to complainant, this newly alleged conduct is too isolated
and insufficiently severe to establish a hostile work environment.
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 decision.
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 2, 2007
__________________
Date
2
0120072336
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120072336