0120081533
09-22-2009
Wayne Maloy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wayne Maloy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081533
Hearing No. 410-2008-00044X
Agency No. 4H-300-0132-07
DECISION
On February 11, 2008, complainant filed an appeal from the agency's
January 15, 2008 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 Rural Carrier at the Fayetteville, Georgia Post Office. On November
30, 2006, a physical therapist telephoned the agency's facility to report
a vehicle incident involving complainant. According to letters written
by the physical therapist and an eyewitness, the physical therapist had
been reaching in the trunk of her vehicle when complainant "inched"
his postal vehicle up to her. The eyewitness wrote that she saw
complainant pull his postal vehicle "dangerously close" to the physical
therapist and thought that complainant's vehicle was going to hit the
physical therapist. According to the physical therapist's letter, the
postal vehicle eventually hit the back of both her calves and pinned
her between the two vehicles so that that she could not move her legs.
The physical therapist subsequently filed a police report.
On November 30, 2006, the agency placed complainant on off-duty status
because of the physical therapist's report that complainant had struck
her with his postal vehicle. On December 28, 2006, the agency issued
to complainant a notice of removal because (1) complainant's failure
to follow safety rules and regulations resulted in an accident on
November 30, 2006, and (2) complainant's five-year accident history,
three vehicle accidents and six industrial accidents, reinforced the
fact that complainant failed to work in a safe manner and failed to
follow safety rules and regulations.
On May 11, 2007, complainant filed an EEO complaint (agency case
no. 4H-300-0132-07), alleging that he was discriminated against on the
bases of age (sixty-four years old) and disability (herniated disk) when:
(1) the agency placed complainant on off-duty status on November 30, 2006;
and (2) the agency issued a notice of removal on December 28, 2006.1
On May 23, 2007, the agency accepted for investigation claim 2. However,
the agency dismissed claim 1 for failure to initiate contact with an
EEO counselor within forty-five days of the date of the matter alleged
to be discriminatory, given that complainant did not initiate contact
with an EEO Counselor until February 21, 2007.2
On September 5, 2007, complainant filed an EEO complaint (agency case
no. 4H-300-0324-07), alleging that he was discriminated against on
the bases of sex (male), disability (back and depression), and age
(sixty-four years old) when, on August 31, 2007, complainant became
aware that the agency had not "written up reports" about other similarly
situated postal carriers who had been involved in accidents.
On October 26, 2007, an EEOC Administrative Judge assigned to case number
4H-300-0132-07 issued an order of consolidation of the two complaints.
The AJ granted the agency's December 17, 2007 motion for a decision
without a hearing and issued a decision without a hearing in favor of
the agency on January 3, 2008. 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
In his brief on appeal, complainant first contends that the AJ abused her
discretion in issuing a decision without a hearing before complainant had
an adequate opportunity to respond to the agency's motion. In addition,
complainant maintains that the AJ erred in issuing a decision without a
hearing because complainant showed that the agency's reasons for removing
him were pretextual in that complainant did not hit the physical therapist
with his postal vehicle, and the agency did not remove similarly situated
postal carriers who were involved in accidents.
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).
A. Procedural Argument
Complainant argues that the AJ abused her discretion in prematurely
issuing a decision without a hearing on January 3, 2007 before complainant
had an adequate opportunity to respond to the agency's motion, which
was served on complainant on December 17, 2007.
EEOC Regulation 29 C.F.R. � 1614.109(g)(2) provides that the opposing
party to a motion for issuance of a decision without a hearing may
file an opposition within fifteen days of receipt of the motion.
After considering the submissions, the AJ may issue a decision without
a hearing.
Upon review of the record, the Commission finds that the AJ did not abuse
her discretion in issuing a decision without a hearing on January 3,
2008 because complainant had until Wednesday, January 2, 2008 to respond
to the agency's motion. The record includes complainant's motion to set
aside summary judgment, in which complainant admitted that the agency
served its motion for summary judgment on complainant on December 17,
2007. Fifteen days from December 17, 2007 is January 1, 2008, a Tuesday
federal holiday. Thus, complainant had until Wednesday, January 2, 2008
to respond to the agency's motion, but failed to do so.3 Therefore, the
Commission finds that the AJ did not abuse her discretion in permitting
complainant fifteen days to respond to the agency's motion, as required
by our regulations, before issuing a decision without a hearing.
B. Disparate Treatment Claim
To prevail in a disparate treatment claim, 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, however, 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 prima facie cases of
discrimination on the bases of sex, age, and disability4, the Commission
finds that the agency articulated legitimate, nondiscriminatory reasons
for removing complainant. The agency explained that complainant was
removed because of reports from the physical therapist and an eyewitness
regarding complainant's involvement in a vehicle incident on November
30, 2006 and complainant's previous record of accidents. The record
includes letters written by the physical therapist and the eyewitness,
as well as a police report detailing allegations that complainant had
pinned the physical therapist against her car with complainant's postal
vehicle on November 30, 2006. The record also includes complainant's
accident history, which shows various accidents.
Complainant argues that there is a genuine dispute over whether the
agency's reasons for removing him were pretextual because complainant
denied in his affidavit to actually hitting the physical therapist with
his postal vehicle. In addition, complainant maintains that the agency
in the past has sided with its employees when allegations are made about
their involvement in accidents. For example, in his formal complaint,
complainant argued that the agency did not treat postal carriers who
had backed into walls or run over cable television boxes as harshly as
it had with complainant.
The Commission finds that there is no genuine issue over whether
complainant failed to prove, by a preponderance of the evidence, that
the agency's reasons for removal were a pretext for discrimination on the
bases alleged. Complainant does not dispute that the physical therapist
had informed the agency about the vehicle incident on November 30, 2006.
Moreover, even though complainant denied hitting the physical therapist
with his vehicle, he admitted in his affidavit that the physical therapist
"could have been startled when she realized the mail vehicle was there and
jerked, moved, or whatever hitting the bumper of the mail vehicle after I
had stopped." The record contains no evidence that management's decision
to remove complainant was caused by anything other than the reports by
the physical therapist and eyewitness to the agency of the incident on
November 30, 2006. Moreover, the examples referenced by complainant about
the agency's more lenient treatment of other postal carriers who were
allegedly involved in accidents do not appear to involve the physical
safety of pedestrians. Therefore, the Commission determines that the
AJ did not err in issuing a decision without a hearing, finding that
complainant failed to show that he was discriminated against as 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 no discrimination.
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 22, 2009
Date
1 In an attachment to this formal complaint, complainant also noted that,
during the pending investigation, the agency breached his right of privacy
and medical confidentiality by revealing to complainant's coworkers
that he would be removed, leaving complainant's letter of dismissal on a
desk where other employees read it, and revealing that complainant was
on medication for a psychiatric condition. In its partial acceptance
and dismissal of the complaint, the agency noted that the allegations
relating to conduct during the pending investigation would be treated
as background information. Complainant did not subsequently challenge
the agency's characterization of these claims.
2 Complainant did not contest the dismissal during the proceedings
before the AJ, nor does he raise the matter on appeal. Accordingly,
the Commission deems this claim waived.
3 Complainant's response to the agency's motion for summary judgment
was not filed until Friday, January 4, 2008. A review of the document
reflects that complainant's counsel misapprehended the time allotted for
response, as counsel cites to the 20-day time frame provided by Federal
Rule of Civil Procedure 12(a)(1), rather than the 15-day time frame
provided in the Commission's regulations at 29 C.F.R. � 1614.109(g).
4 For purposes of this analysis, we assume, without so finding, that
complainant is an individual with a disability within the meaning of
the Rehabilitation Act.
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0120081533
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120081533