0120064697
04-03-2008
Abraham Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Abraham Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120064697
Hearing No. 430-2006-00131X
Agency No. 1C-291-0001-06
DECISION
On August 16, 2006, complainant filed an appeal from the agency's August
8, 2006, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. The appeal is deemed timely and is accepted 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 tractor trailer operator at the agency's Charleston, South Carolina
facility. On December 27, 2005, complainant filed an EEO complaint
alleging that he was discriminated against and harassed on the basis of
reprisal when:
1. On September 20, 2005, the agency issued complainant a seven-day
suspension that was reduced in the grievance process to a letter of
warning; and
2. On October 12, 2005, the agency issued complainant a notice of
seven-day suspension that was reduced in the grievance process to a
seven-day paper suspension.
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. On July 13, 2006, the agency moved for a decision
without a hearing, to which complainant failed to respond. On August 1,
2006, the AJ granted the agency's motion and issued a decision finding
no discrimination. 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.
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").
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).
In a claim such as the instant one which alleges disparate treatment, and
where there is an absence of direct evidence of such discrimination, the
allocation of burdens and order of presentation of proof is a three-step
process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (applying the analytical framework described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA disparate
treatment claim). First, complainant must 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. Kimble
v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).
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. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a 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. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Once a prima facie case has been established, 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). After the agency has articulated such a reason,
the question becomes whether the proffered explanation was the true
reason for the agency's action, or merely a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although
the burden of production, in other words, "going forward," may shift,
the burden of persuasion, by a preponderance of the evidence, remains
at all times on complainant. Burdine, 450 U.S. at 256.
In this case, complainant contends that his supervisor retaliated
against him because complainant filed a form with the agency alleging
that his supervisor violated safety regulations. Complainant argues
that he engaged in protected EEO activity when he reported the safety
violation on the form. However, we note that "prior protected activity,"
in the context of federal employment discrimination law, only includes
opposition to discrimination or participation in the statutory complaint
process. See EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003
(May 20, 1998), at 8-3. More specifically, opposition to discrimination
means that an individual explicitly or implicitly communicated to the
agency a belief that its activity constituted unlawful discrimination
under Title VII, the Rehabilitation Act, the ADEA, or the EPA. In this
case, we find that complainant's reporting of a safety violation is
not protected EEO activity. We further note that in an investigative
affidavit, complainant stated that he previously filed an EEO complaint
that was closed on July 21, 2004. However, complainant stated that the
responsible management official named in the instant complaint was not
involved in his previous EEO complaint. We conclude that complainant
has not established a nexus between the previous EEO complaint and the
adverse treatment alleged in his instant complaint. Therefore, we find
that complainant failed to establish a prima facie case of reprisal.
Assuming arguendo that complainant established a prima facie case
of reprisal, we further find that the agency provided legitimate,
non-discriminatory reasons for its actions. Specifically, agency
management stated that complainant was issued the September 2005 letter of
suspension because complainant had amassed several unscheduled absences
in 2005; complainant had an August 29, 2005 on-the-job accident in
which he rear-ended a vehicle; and, complainant was observed eating
food in his vehicle and using his cellular telephone while driving,
in violation of agency instructions. The agency further stated that
complainant was issued the October 2005 letter of suspension because
complainant was consistently late on his delivery route. We find that
complainant failed to provide any evidence that raises a genuine issue
of fact as to whether the agency's proferred reasons were pretext for
unlawful discrimination or reprisal. Therefore, we find that the AJ
properly found no discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
__April 3, 2008________________
Date
2
0120064697
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120064697
7
0120064697