0120091308
05-17-2012
Arnetta R. Daniels, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Arnetta R. Daniels,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120091308
Hearing No. 450-2008-00247X
Agency No. 4G-752-0104-08
DECISION
On January 17, 2009, Complainant filed an appeal from the Agency's December 19, 2008, final order concerning her 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 accepts the appeal 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 the EEOC Administrative Judge's issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), disability (hand), and reprisal (unspecified) when she was separated from employment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transitional Employee (TE) - City Carrier at the Agency's Post Office in Henderson, Texas. As a TE, Complainant was a non-career employee serving a temporary appointment beginning on October 27, 2007. Under the terms of the Employee and Labor Relations Manual, a temporary employee should be separated as soon as it becomes evident that she is unable to meet the requirements of her position.
On December 29, 2007, while delivering mail on her assigned route, Complainant fractured three fingers when her right hand was caught in the door of a mail truck that she had parked on an incline. Complainant reported the accident to the Postmaster (P1 - Caucasian, female), who completed an Accident Report.
On January 2, 2008, P1 issued Complainant a Notice of Separation (Notice). The Notice cited the December 29, 2007 accident as the reason for the separation and stated the following: "[Y]ou improperly delivered your route by hopping deliveries instead of walking a park and loop on W. Elk St. The LLV door slammed on your right hand causing injury. The accident could have been prevented if you had walked the park and loop."1 The Notice additionally stated, "You were required to carry out your assignments efficiently and conduct your work in a safe manner so as not to endanger yourself." The Manager of Post Office Operations (M1 - Caucasian, male) concurred in Complainant's separation.
On February 29, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), disability (hand), and reprisal (unspecified) when, on January 2, 2008, she was separated from employment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's October 3, 2008, motion for a decision without a hearing and issued a decision without a hearing on December 2, 2008. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In his decision, the AJ initially assumed, arguendo, that Complainant had established a prima facie case of race, sex, and color discrimination, but concluded that Complainant failed to establish a prima facie case of disability and reprisal discrimination. Next, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, Complainant was involved in a preventable accident when she parked on an incline and the door of her mail truck, which she had not secured, slammed shut on her hand. Finally, the AJ found that Complainant failed to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant filed a brief in support of her appeal on February 18, 2009 and submitted additional documents on March 10, 2009. In response, the Agency asserted that Complainant's submissions were untimely and requested that we affirm its final order.
ANALYSIS AND FINDINGS
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 Ch. 9, � VI.B. (Nov. 9, 1999) (providing that both the AJ's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 EEO MD-110, at Ch. 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").
Timeliness of Complainant's Submissions In Support of the Appeal
EEOC Regulations 29 C.F.R. � 1614.403(d) provides, in pertinent part, that any statement or brief in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. Complainant filed the instant appeal on January 17, 2009. Complainant had to file her appeal brief by February 17, 20092 to fall within the 30-day time limit. Complainant did not file her submissions in support of the appeal until February 18, 2009 and March 10, 2009. As Complainant presented no justification for the late submissions, we find that they were untimely filed and will not consider them in the instant decision.
AJ's Issuance of a Decision Without a Hearing
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. 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond, and she had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, a complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Reprisal
To establish a prima facie case of discrimination on the basis of reprisal, a complainant generally must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she 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). Here, Complainant averred that she had not engaged in any prior EEO activity. Moreover, the Agency's MicroPact Internet Complaints System indicates that Complainant has no EEO activity other than the instant complaint. Therefore, we find that Complainant failed to establish a prima facie case of reprisal discrimination.
Race, Sex, Color, and Disability
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race, sex, color, and disability, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions. Specifically, P1 averred that Complainant was separated from the Agency because she was involved in a preventable accident on December 29, 2007 that caused injury to herself. In addition, P1 averred that the accident was preventable because Complainant "hopped" at a slight hill - not an authorized park point for the "park and loop" route - which caused the door of the mail truck to slam on her hand. Similarly, M1 averred that Complainant was separated for not following instructions on the proper mode and method of delivery, thereby creating an unsafe situation that led directly to her accident.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for discrimination. In an attempt to establish pretext, Complainant argued that she was not "hopping" her route and had done a "park and loop" as required. In addition, Complainant argued that P1's investigation of the accident was inadequate and that P1 used the accident as an excuse to separate her. Further, Complainant argued that her race was a factor because two Caucasian carriers (C1 and C2) were involved in accidents but were not separated. Moreover, Complainant argued that P1 had exhibited a pattern of taking adverse actions against African-American employees by terminating two African-American employees (C3 and C4) and replacing them with Caucasian employees. Finally, Complainant argued that her disability was a factor because P1 had previously told her that she was being let go because of the injury to her right hand.
Upon review, we find that Complainant failed to show that, more likely than not, the Agency's reason was a pretext for race, sex, color, or disability discrimination. Even if P1 inadequately investigated the accident and erroneously concluded that Complainant was "hopping" the route, nothing in the record indicates that P1 was motivated by discrimination. The record contains no evidence that P1 treated Complainant differently than similarly situated persons who were not African-American, female, black, or disabled. Although Complainant cited C1 and C2 as comparators, the record is undisputed that P1 did not supervise them at the time of their accidents or play a role in any decisions involving subsequent discipline. Although Complainant asserted that her separation was part of a pattern of discrimination by P1 against African-American employees, the record contains no evidence of such a pattern. The record contains an affidavit from C3 (a current Agency employee) stating that P1 had discontinued his contract for providing lawn mowing services for the Post Office. According to C3, the reason given by P1 was that Agency employees could not have other contract jobs with the Agency. We find that C3's affidavit does not reveal any racial animus by P1; P1 appears to provide a nondiscriminatory reason for discontinuing the contract. Moreover, we note that there is no affidavit or documentary evidence concerning C4.
Complainant merely asserted, without providing any supporting evidence, that race, sex, color, and disability were the reasons for her separation. We note that when a party moves for a decision without a hearing, such as the Agency did here, the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. Accordingly, we find that Complainant has failed to establish her claim of discrimination.
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 order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
__5/17/12________________
Date
1 For a "park and loop" route, the carrier uses a postal vehicle as a moveable container by driving it to designated park points and then loops segments of the route on foot. For a "dismount" route, the carrier makes deliveries by dismount delivery to the door. "Hopping" refers to the act of dismounting at each stop.
2 The 30-day period ended on February 16, 2009. As February 16, 2009 fell on a Federal holiday, however, the period was extended to the next business day, February 17, 2009, pursuant to 29 C.F.R. � 1614.604(d).
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0120091308
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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