0120064396
02-07-2008
Donald M. Martin, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Donald M. Martin, Sr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 01200643961
Hearing No. 160-2005-00323X
Agency No. 1B-041-0011-03
DECISION
On July 15, 2006, complainant filed an appeal from the agency's June
12, 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 (Title VII), 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.
At the time of events giving rise to this complaint, complainant worked as
a Mail Handler at the agency's Eastern Maine Processing and Distribution
facility in Waterville, Maine. On August 27, 2003, complainant filed
an EEO complaint alleging that he was discriminated against and harassed
on the basis of sex (male) when:
1. beginning in January 2000 and ongoing, he was subjected to
inappropriate comments and abusive conduct by co-workers; and,
2. on June 2 and July 25, 2003, his requests for sick leave were denied.
Complainant further alleges that he was discriminated against on the basis
of reprisal for prior protected EEO activity [arising under Title VII]
when:
3. On August 18, 2003, his supervisor screamed at him after he reported
a safety violation;
4. His co-workers were allowed to take breaks and clock in and out early
while he was not allowed to;
5. His absence from September 24-30, 2003 was charged as Leave Without
Pay (LWOP);
6. On December 12, 2003, his sick leave was denied and he was charged
with being Absent Without Leave (AWOL) after police entered the facility
forcing him to leave work; and
7. On March 5, 2004, he became aware that his supervisor (S1) breached
EEO mediation confidentiality by disclosing confidential information in
a document sent to the Office of Workers' Compensation Program (OWCP).
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. Over complainant's objections, the AJ assigned to
the case granted the agency's January 20, 2006 motion for a decision
without a hearing and issued a decision without a hearing on June
7, 2006. The AJ first addressed incidents (1), (2), and (3) under a
harassment framework. He initially found that complainant failed to
establish a prima facie case of harassment as he failed to establish
that the conduct complained of was based on his sex. Further, the AJ
assumed arguendo that complainant had established a prima facie case of
harassment based on his sex and found that the agency nevertheless took
prompt action to remedy the situation. Addressing incident (3), the AJ
noted that reporting a safety violation is not protected EEO activity.
Next, using a disparate treatment analysis, the AJ assumed arguendo that
complainant had established a prima facie case of retaliation and found
that the agency had articulated legitimate, nondiscriminatory reasons for
its actions which complainant failed to show to be pretextual. The AJ
therefore found that complainant had not been retaliated against relative
to these particular incidents. 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. On appeal, complainant
repeats similar arguments made below and urges the Commission to grant
his request for a hearing. In response to the appeal, the agency asks
that we affirm the final order.
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 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).
In this case, the AJ properly issued a decision without a hearing.
Harassment
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) he was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2)
the harassment was based on his membership in a protected class. See
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). In the instant case, the
Commission finds that complainant has failed to present any evidence
from which a reasonable fact finder could conclude that the agency's
alleged harassing conduct towards complainant was based on his sex or
prior protected EEO activity.
Disparate Treatment
We next turn to complainant's claim of discrimination based on reprisal
as to incidents (4) - (7).2 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).
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 or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she 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).
We will assume, arguendo, that complainant has established a prima
facie case of retaliation. The agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to incident (4), S1
claims that all employees were instructed to clock in and out on time
and that he addressed any employee who was caught deviating from his
or her schedule. As to incident (5), S1 claims that complainant's
absences were entered as sick leave, but when complainant did not have
enough sick leave, the absences were automatically changed to LWOP.
As to incident (6), S1 claims that complainant left the facility on
the day in question without notifying a supervisor or manager.3 S1
claims that all employees who are absent without permission or without
enough leave to cover the absence are charged with AWOL. Further, S1
claims that complainant was not involved in, nor even in the same part
of the facility, at the time police were called after another employee
refused to leave the facility and barricaded himself in a union office.
As to incident (7), complainant claims that S1 included confidential
information obtained during EEO mediation in a letter that was sent to
the Department of Labor. S1 claims that the information he included in
the letter was obtained from other employees and did not include anything
that was discussed during the mediation. We find that complainant has
failed to prove that S1 intentionally included in that letter what he knew
was confidential information in order to retaliate against complainant
for his prior protected EEO activity. As to all incidents alleged, we
find that complainant's rebuttal is insufficient to overcome the agency's
legitimate, nondiscriminatory reasons and that he failed to present any
evidence such that a reasonable fact finder could find in his favor.
In this case, drawing all justifiable inferences in complainant's favor,
we conclude that complainant failed to present evidence that any of
the agency's actions were motivated by discriminatory animus toward
complainant's protected classes. Therefore, after a careful review of
the record including arguments and evidence not specifically addressed
in this decision, the Commission finds that the AJ's decision without
a hearing was appropriate, as no genuine issue of material fact is in
dispute.4 See Petty v. Department of Defense, EEOC Appeal No. 01A24206
(July 11, 2003). Therefore, we AFFIRM the agency's final order.
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
February 7, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The AJ was correct in concluding that the only claims of retaliation
cognizable under the jurisdiction of the EEOC are claims of retaliation
for protected EEO activity. Complainant failed to allege a cognizable
claim of retaliation for prior protected EEO activity as to incident
(3).
3 Complainant claims that he left the facility because he felt fearful
because of previous threats from S1.
4 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120064396
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064396