0120112080
07-29-2011
Seth I. Steward, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Seth I. Steward,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120112080
Hearing No. 532-2010-00079X
Agency No. 4C-440-0190-09
DECISION
On March 4, 2011, Complainant filed an appeal from the Agency’s February
3, 2011, 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 Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Carrier at the Agency’s Post Office in Warren, Ohio. The record
indicated that Complainant had requested leave on four occasions in
July 2009, in order to attend the July 11, 2009, funeral of a person
who he considered as an aunt. Complainant’s supervisor (Supervisor)
indicated that the reason for denial of leave was that the unit was at
maximum capacity for leave. Therefore, based on the needs of the service,
the Supervisor could not grant Complainant’s request for leave. On July
10, 2009, Complainant discussed the denial of leave with the Supervisor.
The Supervisor stated that issue with leave capacity and noted that an
aunt did not qualify as an immediate family member.
On the day of the funeral, Complainant arrived at work early.
Complainant informed the Supervisor that he was planning on leaving
early despite being denied the leave. The Supervisor told Complainant
to split his route. The Supervisor stated that since Complainant was
planning on leaving early, he needed to ensure that Complainant’s work
was still completed. Complainant did so and left another leave slip
for the Supervisor. The Supervisor charged Complainant with Absence
without Official Leave (AWOL) when he left early. On July 30, 2009,
the Supervisor issued Complainant a Notice of Removal for Failure to
Maintain a Work Schedule/AWOL. The Notice indicated that Complainant had
previously been issued suspensions for the same charge and for failing
to follow instructions. The Postmaster concurred with the Supervisor’s
recommended removal action.
Believing he was subjected to discrimination, Complainant contacted
an EEO Counselor. When the matter could not be resolved informally,
Complainant was issued a notice of right to file a formal complaint.
On November 16, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American)
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when, on July 30, 2009, Complainant was issued
a Notice of Removal.1
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 EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over the complainant's
objections, the AJ assigned to the case granted the Agency’s August
24, 2010, motion for a decision without a hearing and issued a decision
without a hearing on January 27, 2011. The AJ found that there were no
material facts in dispute. Further, the AJ determined that the Agency
provided legitimate, nondiscriminatory reasons for the removal action.
The Supervisor indicated Complainant was denied leave based on the needs
of the unit and that the unit had reached its maximum capacity of leave.
Despite the denial of leave, Complainant left the office early and the
Supervisor charged him with AWOL. Based on Complainant’s AWOL status
and previous disciplinary actions, the Supervisor issued Complainant
the Notice of Removal.
The AJ then turned to Complainant to establish that the Agency’s reasons
were pretext for discrimination. The AJ found that Complainant failed
to provide any evidence, direct or indirect, showing that the Agency’s
reasons were not worthy of credence. The AJ noted that Complainant’s
proffered comparators were not in fact similarly situated. One comparator
(C1) requested a change in schedule in order to attend a funeral which
the Supervisor granted. The AJ found that C1’s request was different
from Complainant’s request for leave. As to comparator 2 (C2), the
AJ noted that C2 was in a management position when he requested leave to
attend a funeral. As such, C2 was not similarly situated to Complainant.
Based on the record, the AJ concluded that Complainant failed to show
that the removal action constituted discrimination based on his race
and/or prior protected activity.
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. This appeal followed.
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 Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at 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. 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 are no material facts in dispute. As such, we determine
that the AJ properly issued a decision without a hearing.
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). 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
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency’s actions
were motivated by discrimination. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate,
nondiscriminatory reasons for the removal action. The record indicated
that Complainant was denied leave four times due to the needs of
the unit. On July 11, 2009, despite being told that he was denied
leave, Complainant left the office early and was placed in AWOL status.
Based on Complainant’s AWOL status and previous disciplinary actions,
the Supervisor issued the Notice of Removal which was approved by the
Postmaster. Complainant has not shown that the Agency’s reasons
were pretext. As such, we conclude that the AJ properly determined
that Complainant failed to establish that the Agency subjected him to
discrimination based on his race and/or prior EEO activity.
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 action adopting the AJ’s decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
July 29, 2011
__________________
Date
1 Complainant filed a grievance on the removal action. The grievance
was settled resulting in a reduction in the disciplinary action to a
“long term suspension.”
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0120112080
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112080