0120083919
01-23-2009
Winfried W. Geier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Winfried W. Geier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083919
Hearing No. 541-2008-00187X
Agency No. 1E-809-0016-07
DECISION
Complainant filed an appeal from the agency's August 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. 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 Mail Processing Clerk at the agency's Processing and Distribution
Center facility in Colorado Springs, Colorado. On September 24, 2007,
complainant filed an EEO complaint alleging that he was discriminated
against on the basis of national origin (German) when:
On May 23, 2007, complainant's request for Leave Without Pay (LWOP)/Bid
Annual Leave for 6/7/2007 to 6/15/2007 was denied and his leave
slip was falsified.
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 requested
a hearing. The AJ assigned to the case granted the agency's June 25,
2008 motion for a decision without a hearing and issued a decision on
July 22, 2008.
In his decision, the AJ found that none of the material facts remained in
dispute. Specifically, the AJ noted that complainant submitted a request
for LWOP for 6/7/07 to 6/15/07 (56 hours) that was initially denied.1
The AJ noted that later, after management learned that complainant had
requested LWOP in lieu of bid annual leave, complainant's request was
granted. 2 The AJ found insufficient evidence to draw an inference that
complainant's national origin played any role in the agency's decision
to deny his leave. Further, the AJ found that nothing in the record
indicated that employees of one nationality were treated differently
than employees of any other national origin under similar circumstances.
Thus, the AJ found that complainant did not establish a prima facie
case of national origin discrimination. Assuming for the sake of
argument that the complainant had established a prima facie case, the
AJ additionally found that the agency's reasons for its actions were
not shown to be pretext. Specifically, the AJ noted that the agency
officials involved indicated that complainant's initial request did
not indicate that complainant was asking for LWOP instead of annual
leave (bid annual leave) for which he was already scheduled, and so,
complainant's request was denied based upon the agency's operational
needs. Further, with regard to the falsification claim, the AJ noted that
this issue is moot because complainant's LWOP was ultimately approved.
Moreover, the AJ noted that complainant failed to proffer any evidence
that complainant's national origin was considered with regard to the
agency's actions surrounding his leave slip. Accordingly, the AJ found
that complainant did not show that discrimination occurred as alleged.
The agency subsequently issued a final order on August 15, 2008, fully
implementing the AJ's finding that complainant failed to prove that he
was subjected to discrimination as alleged.
On appeal, complainant states that the AJ erred in failing to consider
his response to the agency's motion for a decision without a hearing.
Complainant states that he submitted his response which was received by
the AJ on July 23, 2008, which was within 30 days of the date complainant
received the agency's motion. Complainant states that most deadlines
in the EEO hearing process are 30 days from receipt of the initiating
action.
On appeal, the agency responds that the AJ's Acknowledgement and Order,
dated March 20, 2008, provides in relevant part that a party opposing
a motion for a decision without a hearing has fifteen days from receipt
of the motion in which to file a response.
ANALYSIS AND FINDINGS
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).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find no reason to disturb the AJ's decision
issued on the record and without a hearing. As a preliminary matter,
we observe that to be considered timely, complainant's response to
the agency's motion for a decision without a hearing should have been
submitted within 15 days of the date complainant received the agency's
motion, as specified in the AJ's Acknowledgment Order.
With respect to the AJ's decision on the merits of complainant's
complaint, we observe that the material facts are not in dispute.
Complainant does not dispute that his original request did not
indicate that he was asking for LWOP in place of his bid annual leave.
While complainant contends (in his response to the agency's motion
for a decision without a hearing) that the leave form (form 3971)
he initially submitted was completed as required and the form does
not request employees requesting LWOP in lieu of bid annual leave to
so specify, complainant also does not refute that his second request,
which included this information, was granted. We find further that
complainant does not dispute the approving/denying official's statement
that LWOP is granted at the discretion of the agency. Significantly,
we find nothing in the record suggests that complainant's national origin
motivated any of the agency's actions, nor that complainant identified any
similarly situated employees in similar circumstances that have received
preferential treatment. Accordingly, we find that the AJ correctly
issued his decision without a hearing finding no discrimination.
Accordingly, we AFFIRM 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
January 23, 2009
__________________
Date
1 Complainant filed a grievance after his leave request was initially
denied. That grievance resulted in complainant being granted 56 hours
of LWOP to be taken with one week's notice.
2 Bid annual leave is schedule leave that has been allocated to employees
based upon their bids for specific dates. LWOP is granted or denied
based on anticipated needs of the service on a case by case basis.
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0120083919
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083919