0120080431
10-08-2009
Stephen D. Ashby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen D. Ashby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080431
Hearing No. 480-2007-00243X
Agency No. 4F-920-0147-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 5, 2007, final order concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against him on the
bases of disability (back injury) and in reprisal for prior protected EEO
activity when (a) on April 29, 2006, he received a Letter (LOW) of warning
in regard to his attendance; (b) on May 27, 2006, he was harassed by his
supervisor1 and his request for transfer to another facility was denied;
and (c) on May 31, 2006, he received a LOW and a seven-day suspension.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On July 20, 2008, the agency filed a
motion for a decision without a hearing. Complainant did not reply to
the motion. On September 28, 2007, the AJ granted the agency's motion,
and issued a decision without a hearing finding that the agency did
not discriminate against complainant. The AJ found, in relevant part,
that complainant had not established a prima facie case under either
basis alleged.
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).
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 the AJ's issuance of a decision
without a hearing was appropriate, as the prerequisites for summary
judgment have been met, and there exists no genuine issue of material
fact to be resolved at a hearing.
The analysis of claims, such as complainant's, claiming disparate
treatment is patterned after the three-step scheme announced in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Once the complainant
has established a prima facie case or assuming that s/he does so,
the agency is required to articulate a legitimate, nondiscriminatory
reason for its actions. To prevail, a complainant must demonstrate, by a
preponderance of the evidence, that the agency's reason(s) for its action
was a pretext for discrimination, i.e., that the agency's reason was not
its stated reason and that it acted on the basis of discriminatory animus.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
For purposes of our analysis, we will assume, without so finding that
complainant has established a prima facie case of both disability and
reprisal discrimination.
The agency explained that complainant received the April 29, 2006
LOW because complainant had been absent from work for 64 hours over a
seven-week period, and did not return the provided paperwork to qualify
for leave under Family and Medical Leave Act pursuant to the applicable
Department of Labor regulations; that complainant's request for a transfer
was denied because of the "live discipline," i.e., the April 29, 2006
LOW, in his file; that complainant received the May 31, 2006 LOW because
he delivered mail by "hop and stop" rather than by "park and loop,"
as he had been instructed; and that complainant received the suspension
for two unsafe u-turns while on his route. Complainant has not adduced
evidence to show that the agency's conduct in regard to these matters was
motivated either by his claimed disability status or prior EEO activity.
With regard to complainant's claim that he was treated in a hostile
manner by his supervisor on May 27, 2006, to establish a claim of
harassment based on race, sex, disability, age, or reprisal, complainant
must show that: (1) he is a member of the statutorily protected class;
(2) 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 the statutorily protected class; and (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.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Further,
the incidents must have been "sufficiently severe and pervasive to
alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Here, the only conduct alleged is that complainant's supervisor treated
him in a hostile manner; more specifically, that he yelled at complainant.
Even taking the allegation as true, the conduct complainant of does not
rise to the level of actionable harassment.
In his appeal statement, complainant stated that he did not understand
what to do when he received the agency's Motion for summary judgment.
However, the parties' responsibilities in regard to a Motion for summary
judgment, or a motion for a decision without a hearing, was addressed
in the AJ's initial Acknowledgement Order sent at the beginning of
the hearing process, where it stated that the opposing party, here the
complainant, had 15 days to respond. Complainant also contended that
management offered three different stories as to the facts of this matter
and that his statement was the truth. We do not find that management's
statements were inconsistent as to the articulation of its legitimate,
nondiscriminatory reasons for its actions.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
issuance of a decision without a hearing was appropriate, and the
preponderance of the evidence of record does not establish that
discrimination occurred.
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
October 8, 2009
Date
1 We note that complainant stated this claim as having been "treated
in a hostile manner" by his supervisor during a meeting on May 27,
2006 related to the denial of his transfer.
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0120080431
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080431