0120080648
09-17-2009
Robert D. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.
Robert D. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital-Metro Area),
Agency.
Appeal No. 0120080648
Hearing No. 430-2007-00155X
Agency No. 1K-291-0006-06
DECISION
On November 17, 2007, complainant filed an appeal from the agency's
October 12, 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. 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.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's
(AJ) issuance of a decision without a hearing was appropriate; (2) whether
complainant established that he was subjected to disparate treatment.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Mail Processing Clerk at the agency's Processing and
Distribution Center in Florence, South Carolina. The record reflects
that on July 29, 2006, complainant injured his back while pulling
mail from bins. Although he felt pain, complainant did not inform his
supervisor of the injury and finished working his shift. He was either
out on sick leave or not scheduled to work from July 30, 2006 through
August 5, 2006.
On August 2, 2006, complainant received medical treatment for his back
pain. His doctor informed him at that time that he needed to submit a
new Office of Workers' Compensation (OWCP) CA-16 form ("Authorization for
Examination and/or Treatment") to be reimbursed for medical treatment
and costs associated with an occupational injury.1 On August 3, 2006,
complainant called his supervisor and informed him that he had back pain
and needed to file a claim for an injury. The supervisor stated that he
would not be at work for a few days, but he would inform the Supervisor,
Distribution Operations (SDO) about the situation.
On August 5, 2006, complainant informed SDO of his work related back
injury, and he asked her to provide him with a CA-1 form ("Federal Notice
of Traumatic Injury and Claim for Continuation of Pay/Compensation") and a
CA-16 form. SDO attempted to retrieve a CA-16 form for complainant from
the internet, but the form was not available online. She then contacted
the Shared Services Center, the agency component that processes OWCP
paperwork, and Shared Services refused to provide complainant with a CA-16
form because his claim was deemed untimely. As a result, SDO provided
him with the CA-1 form, but she did not provide him with a CA-16 form.
On September 14, 2006, the OWCP denied complainant's claim for "Traumatic
Injury," finding that "the evidence is not sufficient to establish that
[complainant] sustained an injury as defined by the Federal Employees'
Compensation Act (FECA)." On October 6, 2006, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of sex
(male) and in reprisal for prior protected EEO activity arising under
Title VII when, on August 5, 2006, management refused to give him a
CA-16 form to take to his physician to receive medical treatment.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation and a notice of his right to
request a hearing before an AJ. Complainant timely requested a hearing.
On September 29, 2007, the AJ assigned to the case granted the agency's
June 20, 2007 motion for a decision without a hearing. The AJ's decision
found that complainant failed to establish that the agency's reasons for
refusing to provide him with a CA-16 form were a pretext for unlawful
discrimination based on sex or in reprisal for his prior protected EEO
activity. 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.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. In response, the
agency urges the Commission to affirm its final decision. The agency
argues that the AJ properly found that complainant failed to establish
that the agency's reasons for its actions were pretextual.
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).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists or that there are credibility issues such that
a hearing on the merits is warranted.
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 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).
Assuming arguendo that complainant established a prima facie case
of discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. SDO stated in the record
that on August 5, 2006, she was unable to provide complainant with
a CA-16 form because she did not have access to the form online, and
Shared Services would not provide her with the form because complainant's
request was untimely. SDO noted that Shared Services would not generate
a CA-16 form for accidents not reported within seven days.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we concur with the AJ's determination that
complainant failed to provide any evidence of pretext in the record.
Complainant stated that he should have been provided a CA-16 form
because he contacted his supervisor on August 3, 2006 to inform him that
he had suffered an injury, but there is no evidence in the record that
complainant informed management officials prior to August 5, 2006 that he
had suffered a new "on-the-job" injury. Complainant specifically states
in his affidavit that he contacted his supervisor to inform him that he
"needed to file a claim for a traumatic injury." The supervisor submitted
a statement indicating that complainant informed him that he had back
pain, but "at no point did he mention anything about an accident."
Although both parties acknowledge that complainant contacted his
supervisor on August 3, 2006, there is simply no evidence in the record
that complainant conveyed to management that had had been involved in a
workplace injury that necessitated the issuance of a new CA-16 form until
he spoke to SDO on August 5, 2006. Furthermore, we find that the record
is devoid of any evidence that the agency's actions were motivated by
discriminatory animus towards complainant's sex or in reprisal for his
prior protected activity. We note that the sole comparator complainant
identified as having received favorable treatment was also male, and
there is no evidence that SDO or his supervisor were aware of his prior
protected EEO activity.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant also failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus towards him. We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, the agency's final
order is AFFIRMED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____9/17/09______________
Date
1 Complainant had previously filed a claim with the OWCP for an unrelated
back injury. The doctor determined that his new injury would not be
considered part of his previous OWCP claim because it was in a different
part of his back.
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2
0120080648
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080648