0120073815
09-24-2009
Stephen A. Lebing, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen A. Lebing,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073815
Hearing No. 520-2007-00274X
Agency No. 4B-018-0002-07
DECISION
On August 31, 2007, complainant filed an appeal from the agency's
August 6, 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 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Casual Letter Carrier at the Tewksbury, Massachusetts Post Office.
On September 23, 2006, sixteen days after complainant started working
for the agency, he became involved in a motor vehicle accident while
driving a postal vehicle. The record reflects that complainant intended
to cross over the double yellow lines of a street to make a left turn.
He activated his left turn signal and started to make a left turn.
When the postal vehicle was two feet over the double yellow line, a driver
attempted to pass the postal vehicle from behind on complainant's left
side and hit the postal vehicle.
The Postmaster of the facility conducted an investigation into the
accident and determined that complainant had been lost and had attempted
to turn his vehicle around when he was struck by the vehicle approaching
from behind him. The Postmaster submitted her investigation to the
agency's District Safety Office, which determined that the accident was
"preventable."
On September 28, 2006, the Postmaster informed complainant of the results
of the investigation, and told complainant that he could resign instead of
being removed for his involvement in a preventable workplace accident. On
or about October 6, 2006, complainant informed the Postmaster that he
would not resign because he believed the accident was not his fault.
The Postmaster then removed complainant because he was involved in a
preventable motor vehicle accident.
On January 4, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American),
national origin (Guyana), sex (male), and color (black) when the agency
removed him from employment for his involvement in the motor vehicle
accident on September 23, 2006.
At the conclusion of the investigation, complainant was provided 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 complainant's objections, the AJ assigned
to the case granted the agency's April 3, 2007 motion for a decision
without a hearing and issued a decision without a hearing in favor of
the agency on July 30, 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.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred in issuing a decision
without a hearing because there are genuine issues of material fact over
whether the accident was
"preventable" and whether the agency treated complainant less favorably
than a White female employee, who was reinstated to her position after
being removed for a preventable accident.
ANALYSIS AND FINDINGS
In rendering this appellate decision, the Commission reviews de novo the
AJ's legal and factual conclusions, and the agency's final order adopting
them. 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"). The Commission is free to accept (if accurate)
or reject (if erroneous) the factual conclusions and legal analysis of
the AJ and agency. 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").
The Commission must first determine whether the AJ appropriately
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when the
AJ 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).
In the instant case, we find that summary judgment was not inappropriate,
because there exist no genuine issues of material fact.
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).
He must generally 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). The prima facie inquiry may be
dispensed with in this case because the agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case
of discrimination on each of the bases alleged, the Commission finds
that the agency articulated a legitimate, nondiscriminatory reason for
removing complainant. The agency explained that it removed complainant
because of his involvement in a motor vehicle accident that the agency
deemed to have been "preventable."
Complainant argues that there is a genuine issue of material fact
regarding whether he showed that the agency's articulated reason was a
pretext for discrimination. Specifically, complainant maintains that
the agency's assessment that the accident was preventable was not a
legitimate reason to remove complainant because he was not at fault for
the accident. In addition, complainant contrasts the agency's action
in his case to those involving a White female employee who had been
involved in a preventable accident, but who was reinstated through the
grievance procedure, to which complainant did not have access.
The Commission finds that there is no evidence in the record to show
that the agency removed complainant for any other reason besides
its determination that complainant had been involved in a preventable
motor vehicle accident. With respect to the White female employee, the
Commission finds that her eventual reinstatement does not show that the
agency's reason for removing complainant was a pretext for discrimination.
The Postmaster averred that the White female employee in question was a
full-time Letter Carrier, who was issued a notice of removal for having
a preventable motor vehicle accident. However, because of her full-time
status, this employee filed a grievance and was eventually reinstated.
These statements are not disputed by complainant. Therefore, the
Commission finds that the eventual reinstatement of a full-time employee,
who was initially issued a notice of removal for her involvement in a
preventable accident, does not show that complainant, a casual employee
who was not entitled to the same grievance procedures as the full-time
employee, was subjected to discrimination on the bases alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission affirms
the agency's final order, finding that complainant failed to establish
discrimination on the bases alleged.
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
September 24, 2009
Date
2
0120073815
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120073815