Curtis Flores, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 27, 2007
0120053794 (E.E.O.C. Apr. 27, 2007)

0120053794

04-27-2007

Curtis Flores, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Curtis Flores,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200537941

Hearing No. 370-2004-00457X

Agency No. 4F945011103

DECISION

On April 27, 2005, complainant filed an appeal from the agency's March

16, 2005, 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 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.

ISSUES PRESENTED

Whether complainant was discriminated against on the bases of race

(African-American), disability (stress), and reprisal/hostile work

environment for prior protected EEO activity under Title VII of the

Civil Rights Act of 1964 when: (1) on February 3, 2003, he was issued a

Notice of Suspension; (2) on March 12, 2003, false accusations were made

regarding the theft of a supervisor's vehicle; (3) false accusations

were made concerning his work performance; and (4) he was accused of

improperly using overtime.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Part-Time Flexible City Carrier, PS-06, at the agency's Union City Post

Office in Union City, California. The record reveals that on February

3, 2003, complainant was issued a Notice of Suspension for alleged

failure to follow instructions. Specifically, he was disciplined for

failing to report an accident. The Notice was ultimately reduced to an

official discussion during the grievance process. On March 12, 2003,

complainant was questioned regarding the theft of a supervisor's car

when complainant asked about the car prior to it being public knowledge

that it had been stolen. The Postmaster solicited the Union Vice

President to ask complainant how he knew about the theft of the vehicle.

Complainant received no disciplinary action or any other type of action

regarding this incident. Complainant also maintained that his supervisor

complained about his work indicating that he was slow and accusing him

of misusing overtime. Complainant filed an EEO complaint regarding

these matters on May 14, 2003.

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. The AJ assigned to the case determined sua sponte

that the complaint did not warrant a hearing and issued a decision without

a hearing on February 10, 2005. 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.

The AJ found that with respect to issue (1), complainant's claim was

moot, because the Notice of Suspension was reduced to a discussion and

as such, complainant was not an aggrieved person entitled to relief.

The AJ also found that complainant had failed to establish a prima facie

case of race and reprisal discrimination on this issue because he failed

to offer similarly situated employees who were treated more favorably

than he was under similar circumstances. Further, the AJ held that

this incident was not sufficiently severe or pervasive to constitute a

hostile work environment.

With respect to issue (2), being asked about the supervisor's car,

the AJ found that complainant failed to show that he suffered an

adverse employment action regarding this issue. The AJ indicated that

complainant failed to show a serious and material change in the terms,

conditions, or privileges of employment. Additionally, the AJ found that

complainant failed to establish a prima facie case of race and reprisal

discrimination because he offered no similarly situated employees who

were treated more favorably than he was under similar circumstances.

Finally he found that this incident was not sufficiently severe or

pervasive to constitute a hostile work environment.

Regarding issues (3), work performance, and (4) overtime use, the AJ

found that complainant did not show that he suffered an adverse employment

action, as he did not receive any disciplinary action for these incidents.

The AJ also found that complainant failed to establish a prima facie

case of race and reprisal discrimination because he offered no similarly

situated employees who were treated more favorably than he was under

similar circumstances. Further, the AJ found that these incidents

were not sufficiently severe or pervasive to constitute a hostile work

environment. Similarly, the AJ found that complainant's disability claim

also failed. The AJ indicated that complainant failed to show that he was

a qualified individual with a disability. The AJ found that complainant

had offered no medical documentation that his alleged physical disability

substantially limited one or more major life activities, nor was there

any evidence that the agency regarded him as disabled. Additionally,

the AJ found that complainant's contention of reprisal failed because

he was only able to prove the first prong of his four prong burden of

showing reprisal. Specifically, complainant established that he engaged

in prior EEO activity but was unable to show that his supervisors were

aware of his prior activity, or that he suffered an adverse employment

action, or that a casual connection existed between the prior activity

and the incidents in question.

Finally, the AJ found that even assuming arguendo that complainant

established a prima facie case of race, disability, reprisal or a hostile

work environment discrimination, the agency had articulated legitimate

nondiscriminatory reasons for its actions, namely, that complainant failed

to report an accident and his other allegations did not constitute an

adverse employment action. The AJ concluded that complainant failed to

show that the agency's reasons were pretext for discrimination.

CONTENTIONS ON APPEAL

Complainant contends that he has been subjected to continuing harassment

and a hostile work environment since 1994 but especially in August

2000, when he began his career appointment as a Part Time Flexible

Letter Carrier. Complainant indicates that his involvement as a union

representative largely contributed to his hostile work environment claim.

Complainant contends that the agency did not engage in pre-complaint

processing and simply defined his claims without ever discussing them with

him. Complainant states that the agency has ignored the pattern aspect

of his claim. Complainant maintains that summary judgment should not

have been granted in the case because genuine factual disputes exist.

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").

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. 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).

To establish a claim of harassment/hostile work environment based on race,

disability, or reprisal, complainant must show that: (1) he is a member

of the statutorily protected class; (2) he was subjected to harassment in

the form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the statutorily

protected class; and (4) the harassment affected a term or condition of

employment and/or had the purpose or effect of unreasonably interfering

with the work environment and/or creating an intimidating, hostile, or

offensive work environment. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The

harasser's conduct should be evaluated from the objective viewpoint of a

reasonable person in the victim's circumstances. Enforcement Guidance on

Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

Further, the incidents must have been "sufficiently severe and pervasive

to alter the conditions of complainant's employment and create an abusive

working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75

(1998). In the case of harassment by a supervisor, complainant must

also show that there is a basis for imputing liability to the employer.

See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

After a careful review of the record, the Commission finds that that

AJ appropriately issued a decision without a hearing, as complainant

failed to proffer sufficient evidence to establish that a genuine issue

of material fact exists such that a hearing on the merits is warranted.

Specifically, the Commission finds that the AJ made certain that: the

investigative record was adequately developed; there were no genuine

issues of material fact; and there were no findings of fact made by

weighing conflicting evidence or assessing witness credibility.

The Commission agrees that even if complainant established a prima

facie case of race, disability, reprisal or a hostile work environment

discrimination, the agency articulated legitimate nondiscriminatory

reasons for its actions, namely, that complainant failed to immediately

report an accident where he was injured, and his other allegations did

not constitute adverse employment actions because no action was taken

by the agency when he was questioned about the supervisor's car, and

comments were made about his work performance and overtime. We find

that complainant failed to show that the agency's reasons were pretext

for discrimination.

Regarding complainant's contentions on appeal, that his complaint was

not properly framed and that the agency ignored the pattern aspect of his

claim, the Commission finds that, even if his allegations were considered

together, they still do not rise to the level of harassment. When we

determine whether an incident or group of incidents, as is the case here,

is actionable, we look at the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating,

or a mere offensive utterance, and whether it unreasonably interferes

with an employees work performance. See Harris v. Forklift, supra.

In the case at hand, while it certainly must have been difficult to be

questioned about the supervisor's stolen car and to be given negative

comments about his work product and overtime usage, the Commission finds

that these incidents are not severe or pervasive enough to constitute a

hostile work environment. We find they simply do not rise to that level

where they would interfere with complainant's work performance. Further,

while complainant contends that he has been subjected to hostile behavior

since 1994, he has not provided any evidence to support his contention.

Accordingly, the Commission finds that a finding of no discrimination

is supported by the record. The agency's order is hereby affirmed.

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

___04/27/07_______________

Date

1 Due to a new data system, this case has been redesignated with the

above-referenced appeal number.

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0120053794

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036