0120142616
01-19-2016
Shayne K.,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
Shayne K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120142616
Hearing No. 480-2013-00372X
Agency No. 4F926021012
DECISION
On July 14, 2014, Complainant filed an appeal with the Equal Employment Opportunity Commission from the Final Order issued by the Agency concerning his claim of 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 accepts the appeal 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 Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without first holding a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against him on the basis of reprisal (protected EEO activity) when it removed him.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's San Gabriel Post Office facility in San Gabriel, California. On August 30, 2012, Complainant filed an EEO complaint alleging that he was discriminated against when, on April 26, 2012, his supervisor (S1) issued him a Notice of Removal, with an effective date of August 12, 2012, based upon reprisal (protected EEO activity). The Agency removed Complainant for Unacceptable Conduct related to his arrest and subsequent conviction for violation of the California Vehicle Code, Section 4463(a)(1) and for a prior incident of mishandling mail.
Complainant was arrested at work on November 22, 2011. His subsequent plea led to a felony conviction on February 29, 2012. The Agency also took into consideration that Complainant had previously served a fourteen (14) day suspension in September 2011, for Unacceptable Conduct for mishandling mail.
The record indicated that in December 2009, Complainant presented an altered vehicle registration at the Department of Motor Vehicles (DMV), which led to an investigation where the DMV found that Complainant was not issued the vehicle registration he presented. The intended recipient of the vehicle registration tags confirmed that she never received them in the mail.
Upon notification from the DMV regarding the alleged theft of the vehicle registration tags, the Agency's Office of Inspector General (OIG) prepared two (2) Target gift cards as a test. Target notified the OIG that a call was made to check the balance of one of the test gift cards. The phone number matched Complainant's cell phone number and Complainant admitted to calling to check the balance. Later, that same gift card was redeemed by someone who stated she knew Complainant as "her sister-in-law's best friend's husband."
Based on Complainant's admission of mishandling the gift card when he called to check the balance, the Agency issued him a Notice of Removal for Unacceptable Conduct on September 6, 2011, which was later reduced to the fourteen (14) day suspension. Based upon all of these incidents, the Agency ultimately decided to remove Complainant for Unacceptable Conduct on April 26, 2012.
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 (AJ). On March 24, 2013, Complainant requested a hearing.
On July15, 2013, the Agency filed a Motion for a Decision Without a Hearing and Complainant served an Opposition to the Agency's motion on July 29, 2013. The AJ issued a Decision on June 20, 2014, finding that there were no material facts in genuine dispute and no unlawful employment discrimination. The AJ found that Complainant had not provided specific facts to show that there were genuine issues for a hearing but instead, improperly relied on conclusory allegations against the Agency.
The AJ held that Complainant had not established a prima facie case of retaliation because he failed to show that he engaged in prior protected EEO activity or that there was a causal connection between the protected activity and his removal. With respect to Complainant's removal from the Agency, the AJ found that the Agency issued Complainant his Notice of Removal on April 26, 2012, terminating his employment, effective August 12, 2012. The AJ found that the record established that Complainant's earliest prior EEO activity occurred in late July 2012, and that S1 communicated the decision to terminate him before this activity. As such, the AJ found that Complainant did not establish a prima face case of retaliation.
Additionally, the AJ held that, assuming, arguendo, that Complainant had established a prima facie case of retaliation, the Agency had proffered legitimate non-retaliatory reasons for his termination; specifically, Complainant was removed due to his November 22, 2011, arrest and subsequent felony conviction on February 29, 2012. The AJ then found that Complainant had not met his burden to show that his membership in a protected class, rather than the Agency's proffered justification, was the true reason behind the Agency's termination.
On July 2, 2014, the Agency issued a Final Order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination, as alleged. Complainant filed his appeal with the Commission on July 14, 2014, and submitted a supplement to his appeal on August 27, 2014.
ANALYSIS AND FINDINGS
Standard of Review
At the outset, we note that Complainant filed a supplemental statement in support of his appeal on August 27, 2014; it was submitted after 30 days of filing of the appeal on July 14, 2014. Any supporting statement must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. See 29 C.F.R. � 1614.403(d). Accordingly, we decline to consider the supporting supplemental statement submitted after the 30 day date, as it was untimely filed.
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), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ'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 EEO MD-110, Ch. 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 the Commission "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").
Decision without a Hearing
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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In his July 14, 2014, appeal, Complainant alleges that the fact that he had a felony conviction is material and in genuine dispute. He states that he appealed his conviction on May 17, 2014, and June 6, 2014, and his guilty plea was set aside and his conviction vacated. Complainant alleges that since his conviction was vacated, the fact that he is guilty of a felony is a material fact in genuine dispute.
Assuming, arguendo, that this is a material fact, there is no genuine dispute regarding Complainant's arrest and subsequent conviction. The California Superior Court records show that Complainant entered a guilty plea and that he was convicted of a felony on February 29, 2012. Additionally, Complainant admitted that he was charged, convicted and sentenced for a felony on April 12, 2012, during his Investigative Interview with S1. While Complainant argues that the charge has since been vacated, at the time that he was issued his Notice of Removal on April 26, 2012, the conviction was upheld.
In Complainant's Opposition to the Agency's Motion for a Decision without a Hearing, he alleged that the following are material facts that are in genuine dispute:
1. Management officials terminated him after they were made aware of his involvement in protected EEO activities as a witness.
2. There is no evidence that the license plates arrive as a parcel from the Department of Motor Vehicles and S2 did not see them arrive at the facility from the DMV.
3. He did not know the person who redeemed the Target gift card "as the sister-in-law of his wife's best friend."
Complainant alleged that the fact that S1 and his second-line supervisor (S2) terminated him after they were aware of his involvement in a co-worker's (C1) EEO complaint is material and in genuine dispute. While this is a material fact, there is no genuine dispute regarding the timing of their knowledge. Complainant maintains that he submitted a witness statement to S1 and S2 on August 6, 2012. While Complainant described what he had witnessed between C1 and S1, Complainant had not provided any specific information that would allow for a reasonable conclusion that S1 or S2 were aware of his protected EEO prior to his termination. Further, Complainant argues that his removal occurred in January 2013, after S1 and S2 were aware of his protected EEO activity on August 6, 2012. However, the record shows that S1 made the decision to remove Complainant on April 26, 2012, prior to S1's knowledge of Complainant's protected EEO activity.
Complainant also alleged that the fact that there is no evidence that license plates arrive as a parcel from the DMV and that S2 did not see them arrive at the facility from the DMV is material and in genuine dispute. We find that these are not material facts because they do not affect the outcome of this case. Whether or not the license plates arrive as a parcel, or if anyone saw them arrive, was not relevant in the Agency's decision to remove Complainant.
Finally, Complainant alleged that the fact that he did not know the person who redeemed the Target gift card is material and in genuine dispute. We find that this is also not a material fact because it does not affect the outcome of this case. The prior incident of Complainant's mishandling mail refers to his calling Target to check the balance of one of the test gift cards, which he had admitted to doing. Any relationship that Complainant had, or did not have, to the person who redeemed that gift card was not relevant to the Agency's decision to remove Complainant.
In light of the evidence in the record, we find that Complainant did not establish that there were any material facts in genuine dispute and that the AJ did not err in issuing a Decision without a Hearing.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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 Constr. 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, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Here, Complainant has failed to establish a prima facie case of discrimination based on reprisal because the Agency was not aware of his protected activity; the adverse action was not subsequent to his protected EEO activity and; there is no nexus between the protected activity and the Agency's decision to remove Complainant. The record shows that Complainant submitted a letter to S1 and S2 dated August 6, 2012, in support of C1's EEO complaint. Complainant stated that he met with S1 and S2, also on August 6, 2012, and informed them of his participation in C1's EEO case. Despite Complainant's claim that the adverse action occurred in January 2013, after management was aware of his protected EEO activity, S1 decided and issued his Notice of Removal on April 26, 2012, before she had knowledge of his protected EEO activity.
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal, we find that the evidence in the record supports the AJ's finding that the Agency articulated legitimate, non-discriminatory reasons for the alleged discriminatory action complained of in the instant matter when it removed Complainant for Unacceptable Conduct related to his arrest and subsequent conviction for violation of the California Vehicle Code, Section 4463(a)(1) and for a prior incident of mishandling mail. We also find that Complainant was unable to demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). In light of the evidence in the record, we find that Complainant failed to establish he was subjected to discrimination based on reprisal.
CONCLUSION
Based on a thorough review of the record in its entirety, including consideration of all timely arguments submitted on appeal even if not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision because the record supports the AJ's finding that (1) there were no material facts in genuine dispute and a Decision without a Hearing was proper and; (2) that Complainant cannot establish that discrimination occurred, as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 signatur
Carlton M. Hadden, Director
Office of Federal Operations
_1/19/16_________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120142616
2
0120142616