0120160745
05-30-2018
Quinn B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Quinn B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120160745
Hearing No. 550-2012-00191X
Agency No. 4F-940-0007-12
DECISION
On November 25, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 19, 2015, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented an Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing.
ISSUE PRESENTED
The issue presented is whether the AJ erred in finding that Complainant was not subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Menlo Park facility in Menlo Park, California. On December 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Chinese), national origin (China), sex (male), disability (Major Depression), and reprisal for prior protected EEO activity when:
1) He was threatened;
2) He was humiliated and belittled;
3) He was issued disciplinary action;
4) He was denied leave;
5) He was closely monitored and his work and performance was criticized;
6) He was denied reasonable accommodation when he was sent home early;
7) On or about October 22, 201l, he was asked by management if he had some kind of medical problem;
8) On or about October 27, 201l, he was told by management that if he wanted this job he needed to work with them; and
9) On or about November 3, 2011, he was told by management that if he did not complete his assigned task within the allotted time, his hours would be cut.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on November 3, 2015, finding that Complainant did not demonstrate that he was subjected to discrimination as he alleged.
Specifically, the AJ dismissed claims 1 - 6 as untimely. The AJ found that claims 1 and 2, where Complainant alleged that he was threatened, humiliated and belittled occurred in 2007 and 2008, well beyond the 45-day time limitation period. For claims 3, 4 and 6, Complainant alleged that he was disciplined, denied leave, and denied a reasonable accommodation. These claims reference specific dates. The record indicates that Complainant was issued a 7-Day no time off suspension on or about May 23, 201l, and on or about February 19, 2011, Supervisor-1 (S1) sent Complainant home early and placed him on Leave Without Pay status. Again, these incidents occurred outside the 45-day time limitation period to contact an EEO counselor, and as such, the AJ found that they too were time-barred and were dismissed pursuant to EEOC Regulation 29 C.F.R 1614.105(a)(1).
The AJ also noted that although Complainant and his representative were given several opportunities to dispute the scope of the accepted claims, they did not do so. Moreover, the AJ found that Complainant did not show that the allegations were continuing violations as, there was nothing in the record to show that these discrete acts involved a set of facts that sufficiently connected to the acts that were timely. For example, the AJ found that the six untimely acts spanned a period of 4 years, did not allege a common discriminating official, did not allege a particular statute that was violated, or contain any other facts that could reasonably be construed to conclude that some pattern of discrimination occurred. As such, all discrete acts that occurred prior to September 12, 2011 were not considered individually by the AJ and were dismissed pursuant to EEOC Regulation 29 C.F.R 1614.105(a)(1).
With respect to Claims 7, 8, and 9, where Complainant alleged that he was subjected to discrimination when: on or about October 22, 2011, S1 asked if he had a medical problem; on or about October 27, 2011, S1 instructed him to work with him; and on or about November 3, 2011, S1 again instructed Complainant to work with him. The AJ found that while doubtful that Complainant could establish a prima facie case of discrimination due to the lack of any adverse action, assuming Complainant established such a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. S1 explained that he asked Complainant whether he had a medical problem because he noticed that Complainant was going to the restroom for what seemed like an unusually frequent number of times throughout the day, and, he wanted to find out whether Complainant needed an accommodation.
Further, S1 explained that by asking Complainant to "work with him," he was trying to instruct Complainant on how to improve his performance. S1 indicated that he had spoken to Complainant many times regarding his work efficiency but Complainant had yet to improve. Therefore, he was telling Complainant to follow his instructions so that he could improve his performance. The AJ found that Complainant did not prove his pretext argument as he offered only conclusory statements. Complainant argued that no employee outside of his protected group was treated the same as he was. The AJ found that Complainant did not present any evidence that proved his pretext argument.
Finally, with regard to Complainant's hostile work environment claim, the AJ determined that the incidents Complainant complained of, i.e., feedback and directions to an employee about work performance issues are routine occurrences in any workplace. Complainant specifically alleged that S1 closely monitored his work, criticized his performance (claim (5), asked him to "work with him," reduced his hours, and issued a disciplinary action. Further, Complainant alleges that S2 harassed him by denying his sick leave and instead giving him leave without pay. Even assuming Complainant's allegations are true, the AJ, among other things, found no evidence that these matters could be characterized as severe or pervasive or were motivated by discriminatory animus.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ's analysis was erroneous as her decision was based on an incomplete investigative file and incorrect material facts. He maintains that he has submitted an abundance of evidence that showed that the Agency has engaged in lies, abuse, retaliation, disparate treatment, hostile work environment, infliction of emotional distress, and other unlawful acts. Complainant argues that the AJ erred in finding that there were no undisputed facts and the misleading statements of the Agency have been put forth as undisputed material facts. Complainant reiterates his assertion that the evidence demonstrates that the Agency failed to provide him with a reasonable accommodation. Further, he maintains that he filed his complaint under the theory of continuing violations, and a hostile work environment.
Complainant also argues that the AJ erred in finding that his pre-complaint was initiated on October 27, 2011, when in fact, it was initiated on November 8, 2011. Complainant also asserts that management admitted that they were aware that Complainant had a medical condition that made him urinate frequently, and they were aware that other employees were treated more favorably than he was, especially those employees from the Philippines.
In response, the Agency contends, among other things, that the appeal should be dismissed as a number of Complainant's claims were untimely and the remainder of his claims failed to show the presence of any discriminatory animus. Further, the Agency asserts that, even when all of Complainant's allegations are considered collectively, the incidents were not severe and pervasive enough to establish a hostile work environment. The Agency requests that the AJ's decision be affirmed.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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. 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 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 of the record, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond to such a statement, and he was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, first, we find that the AJ properly dismissed claims 1 - 6 as untimely. The record shows that some of the incidents occurred as far back as four years ago. Further, we also find that Complainant did not establish that his claims amounted to a continuing violation as the claims occurred years and months apart and were discrete acts.
With respect to Claims 7 - 9, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all of his bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions. We find that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination.
Further, we find that other than Complainant's conclusory statements on appeal, he has not provided any evidence which demonstrates that he was subjected to discrimination or discriminatory harassment. Complainant argues that other employees not of his protected bases were treated more favorably but again he offers only his opinion and no evidence.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) that he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. By way of contrast, in the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id.
Upon review, we find that the preponderance of the evidence and the totality of the circumstances do not indicate that Complainant established his claim that he was subjected to a hostile work environment based on his protected bases. With regard to Complainant's claim of hostile work environment, we make the following determinations, we find that even if we considered all of Complainant's claims together they are not severe or pervasive enough to establish a hostile work environment as the incidents were, for the most part, isolated work place incidents, commonly found in a work environment. Furthermore, we find no evidence that discriminatory animus motivated these matters.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which found that Complainant did not demonstrate that he was subjected to discrimination or a hostile work environment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__5/30/18________________
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.
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