0120142761
05-26-2016
Virgilio C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Virgilio C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120142761
Hearing No. 471-2014-00040X
Agency No. 1J483003013
DECISION
On July 9, 2014, Complainant filed an appeal from the Agency's June 26, 2014, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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.
ISSUES PRESENTED
The issues presented are: (1) whether an Equal Employment Opportunity Commission Administrative Judge's (AJ's) issuance of a decision without first holding a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against him on the bases of disability (post-traumatic stress disorder) and in reprisal (prior EEO case) when it did not allow him to return to work, despite receiving medical clearance.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's Detroit Priority Mail Facility in Romulus, Michigan. On January 12, 2011, Complainant allegedly stated to the Manager, In-Plant Support (MIPS), "there is the crook. He should be in jail," and "wipe that stupid smirk off your face, you should be in jail." On January 28, 2011, Complainant allegedly told the MIPS that he would be taking him to court for breaking into his house and raping him.2
On February 25, 2011, a Manager, Human Resources (MRH) emailed Complainant to inform him that Complainant's supervisor requested that he submit to a psychiatric fitness for duty examination based upon his demonstrated behavior in the workplace. On March 2, 2011, Complainant met with a doctor (DR1), who determined that he was not fit for duty. DR1 recommended that Complainant not return to work until he demonstrated that he had participated in regular and adequate treatment, and was compliant with antipsychotic medication. On March 7, 2011, the MRH informed Complainant that he was deemed "Not Fit for Duty" at this time and Complainant was escorted off the premises.
On March 8, 2011, an Agency doctor (DR2) sent Complainant a memo stating that he needed to provide documentation from his psychiatrist regarding his compliance with his medical treatment and psychotherapy on a monthly basis. On September 27, 2011, DR2 sent Complainant a letter stating that Complainant had not provided any documentation from his treating physician (DR3) since June 2011. DR2 requested updated documentation and reminded Complainant that he needed to provide proof of compliance with the medication and psychotherapy treatment on a monthly basis, once he returned to work.
On or about May 1, 2013, Complainant provided a letter and a statement from DR3 to the Manager, Maintenance Operations (MMO) requesting to return to work. DR3 stated that Complainant currently presented no evidence for mood disorder or psychosis, and that he saw no "psychiatric contraindication" for Complainant to return to work at the Agency. DR3 also noted that Complainant was currently working at a factory without evidence of behavioral problems or conflicts with coworkers.
The MMO forwarded the letter to the MHR and the Senior Area Medical Director (SAMD) for review. The SAMD reviewed Complainant's request and informed him on May 29, 2013, that he was "Not Fit for Duty" at this time. The SAMD stated that the information that Complainant provided from DR3 was insufficient and did not reflect the initial directive from DR2. The SAMD requested that Complainant provide a statement from DR3 indicating that Complainant was not a risk to harm himself or others, and his current psychotherapy and medication treatment.
On September 3, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (post-traumatic stress disorder) and reprisal for prior protected EEO activity when on May 1, 2013, the Agency did not allow him to return to work, despite receiving medical clearance.3 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's June 4, 2014, motion for a decision without a hearing and issued a decision without a hearing on June 20, 2014.
The AJ found that there were no genuine issues of material fact in dispute, and that the matter was appropriate for a decision without a hearing. The AJ then found that Complainant had not established a prima facie case of disability discrimination because he did not show any comparative evidence or any evidence showing that the Agency's actions may have been motivated by discriminatory intent. The AJ also found that Complainant had not established a prima facie case of reprisal discrimination because the MMO, the MHR and the SAMD, all denied knowledge of Complainant's prior EEO activity.
However, the AJ assumed that Complainant had established a prima facie case of disability discrimination, and found that the Agency articulated a legitimate, non-discriminatory reason for not allowing Complainant to return to work. Specifically, the AJ found that Complainant had not provided any documentation with his May 1, 2013, request to return to work, despite being instructed to provide documentation of compliance with regular medical treatment. The AJ determined that Complainant had not submitted any evidence to rebut the Agency's reason. She found that Complainant made general unsupported allegations based on his suspicion that the Agency was motivated to cover up alleged criminal acts, which were not sufficient to show pretext for discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant had not proven that the Agency subjected him to discrimination as alleged. Complainant then filed the instant appeal and submitted his brief in support of his appeal on July 17, 2014. Complainant submitted an additional statement on July 5, 2015. The Agency did not submit a reply to Complainant's appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant is requesting that the Commission
1. Allow his previous EEO case (EEOC No. 471-2011-0090X) be heard in its entirety;
2. Reconsider the MSPB's decision;
3. Start a federal criminal investigation into the alleged actions of his managers; and
4. Overturn the EEOC AJ's decision.
ANALYSIS AND FINDINGS
In regards to Complainant's requests (1) to allow his prior EEO case to be heard; (2) to reconsider the MSPB's decision; and (3) to start a federal criminal investigation into the alleged actions of his managers, we note that the Commission does not have the authority or jurisdiction to grant these requests.
With regard to request (1), we note that in Complainant's statement in support of his appeal, Complainant noted that in his previous appeal (EEOC Appeal No. 0120103635), the Commission reversed and remanded his harassment claim for further processing. Complainant stated that he requested a hearing before an EEOC AJ, but then later withdrew the hearing request to file a civil action on the same matter, but did not do so. We find that Complainant voluntarily withdrew his hearing request and our regulations do not provide for a second opportunity to request a hearing at this stage. Consequently, we deny Complainant's request for a new hearing. Additionally, the Agency issued a final decision on this claim on October 31, 2011, which Complainant did not appeal.
With regard to request (2), we note that EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. As noted above, the MSPB found that it lacked jurisdiction over Complainant's constructive suspension claim; therefore, we find that Complainant's claim is not a "mixed case" as defined by our regulations, and that we have no jurisdiction to review the MSPB's decision.
Finally, with regard to request (3), we note that the Commission has no authority to initiate any federal criminal investigation on Complainant's allegations against his managers.
This decision will only address Complainant's appeal of the AJ's decision regarding Complainant's allegation that he was discriminated against based on disability and in reprisal for prior EEO activity when the Agency did not allow him to return to work on May 1, 2013, despite Complainant receiving a medical clearance to return to work, i.e., request (4). We will not consider Complainant's July 5, 2015, statement because it is untimely. Complainant was informed that he needed to provide any statements within 30 days of his appeal, and he provided a brief on July 17, 2014, which will be considered.
Standard of Review
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), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge'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 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 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).
In Complainant's case, we agree with the AJ that there were no material facts in genuine dispute. While Complainant argued that there were many facts in dispute, we find that most of the facts are not material because they do not affect the outcome of the instant case. Additionally, for those facts that are material, Complainant has only made bare allegations, and has not shown evidence that there is a genuine dispute. Accordingly, we find that a decision without a hearing was properly issued.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
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).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Assuming, arguendo, that Complainant has established a prima facie case of discrimination based on disability and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its decision to not permit Complainant to return to work in May 2013. The Agency repeatedly informed Complainant that he would need to provide adequate medical documentation before being allowed to work. The SAMD stated that Complainant did not provide documentation showing that he received treatment and medication, and recommended that Complainant not return to work at the time. The MHR stated that he believed that Complainant's failure to provide the proper documentation was the only factor that the SAMD weighed in making her decision.
Complainant has not provided any evidence to prove pretext or that the Agency's actions were discriminatory. Accordingly, we find that Complainant has not shown that he was discriminated against on the bases of disability and reprisal for prior EEO activity when the Agency denied his request to return to work on May 1, 2013.
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 decision adopting the AJ's finding that Complainant had not shown that the Agency discriminated against him on the bases of disability and in reprisal for prior EEO activity when it did not allow him to return to work, despite receiving medical clearance.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 signature
Carlton M. Hadden, Director
Office of Federal Operations
_5/26/16_________________
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 Complainant alleged that he was sexually assaulted by a co-worker in his home on August 7, 2009, and that the MIPS was present at the time. Local police and the Agency's Inspection Services both investigated this allegation and found no merit.
3 Complainant also filed an appeal with the Merit Systems Protection Board (MSPB) alleging a constructive suspension and a violation of restoration rights (Docket# CH-0353-12-0187-I-1). The MSPB AJ found that the MSPB did not have jurisdiction for Complainant's constructive suspension claim because while Complainant was a non-supervisory, non-management Postal Service employee who was not engaged in personnel work, he was not entitled to veterans preferences, and therefore, had no right to appeal an adverse action before the MSPB. The MSPB also found that Complainant did not allege that he suffered from a compensable injury, and that the restoration regulations do not apply in his circumstances. The MSPB full board denied Complainant's petition for review and affirmed the AJ's decision on September 2, 2012.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120142761
2
0120142761