0120113043
10-03-2012
Danny E. Estep, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Danny E. Estep,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120113043
Hearing No. 450-2011-00022X
Agency No. 4G-760-0098-10
DECISION
Complainant filed a timely appeal from the Agency's final order, dated April 28, 2011, 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. 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 Manager, Post Office Operations, at the Agency's Area 1 (MP001) facility in Fort Worth, Texas.
On June 3, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment, on the bases of national origin ("Native American/ White") and sex (male) when:
1. Beginning March 11, 2010, Complainant's supervisor ridiculed him and berated him in front of his peers during a safety meeting;
2. On April 5, 2010, his supervisor threatened Complainant with removal;
3. On April 20, 2010, his supervisor accused Complainant of not doing Complainant's job;
4. On April 26, 2010, the supervisor harassed Complainant during a meeting and instructed him to report to the District Manager on a daily basis;
5. On May 3, 2010, the supervisor called Complainant into his office and placed Complainant on a Performance Improvement Plan;
6. On May 4, 2010, the supervisor told Complainant that his area was the worst in the district for service; and
7. On May 6, 2010, the supervisor instructed that an audit team stay in Complainant's area, even though prior audits for the area showed passing grades.
The record shows that the District Manager (supervisor) was assigned to serve as Complainant's supervisor beginning in January of 2010. The record shows that Complainant's supervisor was not aware of Complainant's Native American ethnicity.
The record shows that the supervisor made the alleged comments to Complainant, as Complainant alleged. In addition, the record shows that Complainant subsequently, voluntarily stepped down from his position to take a lower-graded position.
The supervisor averred that he believed Complainant to be a Caucasian male, as was the supervisor. The supervisor denies that he treated Complainant differently than other employees who reported to him, but the supervisor believed that Complainant was "too nice" and "did not hold his team accountable" in a manner that the supervisor found acceptable. Complainant disagreed with his supervisor's assessment of his area and his perception of Complainant's performance.
The investigation provided little information with regard to the treatment of the female comparators. One Agency witness, the Human Resources official, responded "unknown" when asked if sex was a factor in the Agency's actions. The record does not show that there were similarly situated females, although Complainant identified comparators.1
At the conclusion of the investigation, the Agency provided Complainant 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 Agency filed a motion for a decision without a hearing. Complainant filed an opposition. The AJ assigned to the case determined that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on March 31, 2011.
In her decision, the AJ found that there were no genuine issues of material fact and that Complainant was alleging a hostile environment claim. The AJ reasoned that "even if all of the facts as alleged by the Complainant are true, [the AJ] still cannot find that the Complainant has established a claim of discriminatory harassment." The AJ concluded that there is insufficient evidence from which to find that the Agency's actions were linked to Complainant's national origin or sex. The AJ found that Complainant did not cite any statements or behaviors that were related to his national origin or sex and that the supervisor was not aware that Complainant was of partial Native American ancestry.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant argues that the record shows that he was subjected to a hostile work environment and that witnesses could attest that his supervisor verbally attacked Complainant and subjected him to extra scrutiny.
In response, the Agency asks the Commission to affirm the decision because Complainant failed to establish that the conduct was related to his national origin or sex or was sufficiently severe or pervasive to create a hostile work environment.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 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. 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). The Commission finds that the AJ's issuing a decision without a hearing was appropriate because there are no genuine issues of material fact in dispute.
The record shows that Complainant was provided ample notice of the proposal to issue a decision without a hearing, and the opportunity to respond and did respond. The AJ considered the evidence and ruled on the motion for summary judgment in a manner that permitted all reasonable inferences to be drawn in Complainant's favor. There was no conflicting testimony presented.
To prevail in a harassment claim, Complainant must show that he was subjected to actions because of his national origin or sex. Here, the undisputed evidence shows that the supervisor was not aware of Complainant's national origin; and there was no evidence offered specifically showing that similarly situated female employees were treated differently. Therefore, judgment as a matter of law for the Agency was appropriate.
CONCLUSION
Accordingly, the Commission AFFIRMS the 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 tends 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
October 3, 2012
__________________
Date
1 Our de novo review of the record shows that one of the female comparators, named by Complainant, had been transferred to the Fort Worth District Office during the period at issue and her rank was changed from a grade 11 to a grade 17. In addition, the personnel record for that female comparator employee referenced a "merits lump sum payment." The female had been a Postmaster at another location as of January of 2010, when Complainant's supervisor was detailed to serve as the District Manager. However, there is no evidence that links the transfer of the female comparator to Complainant's location to the actions at issue in this appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120113043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113043