0120111666
09-26-2012
Hugson J. Jean, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Hugson J. Jean,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120111666
Hearing No. 520-2010-00418X
Agency No. 4B-028-0014-10
DECISION
Complainant filed an appeal from the Agency's December 16, 2010 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. For the following reasons, the Commission AFFIRMS the Agency's decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transitional Employee City Carrier at the Agency's Hingham Post Office facility in Massachusetts. On January 28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black) and color (black) when:
1. On October 9, 2009, the Agency failed to act on an assault by a customer on Complainant while on his route;
2. On October 10, 2009, management assigned Complainant to the same route on which he was assaulted and refused to provide him a CA-1 (injury form) when he reported double, blurry vision;
3. On November 6, 2009, Complainant was yelled at and sent home; and
4. On November 13, 2009, the Agency issued Complainant a removal letter for failing to follow instructions and discharge assigned duties conscientiously and effectively.
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 requested a hearing. When Complainant failed to respond, the AJ assigned to the case granted the Agency's October 2, 2010 motion for a decision without a hearing and issued a decision without a hearing on December 3, 2010.
In his Decision, the AJ found that Complainant failed to establish a prima case of discrimination on either basis. Specifically, the AJ found that with respect to his termination, Complainant had not shown that any other employees, not in his protected groups were not also terminated after engaging in the same or similar action that Complainant engaged in, as noted in the Notice of Removal that Complainant received. The AJ noted the evidence did not show that the employee Complainant sought to compare himself to, had committed the same or similar offenses charged to Complainant that led to Complainant's termination. (Claim (4)).
With respect to claim (3), the AJ found that being yelled at, without more, did not render Complainant aggrieved for purposes of EEO and that this incident did not state a claim. Regarding claims (1) and (2), the AJ found that at the time of the incident in which a customer assaulted Complainant, the evidence showed that Complainant declined all medical treatment and did not file an injury form until 42 days later and only after he was removed from the Agency. The AJ found that the Agency had no reason to provide Complainant with an injury form earlier because Complainant said he was not injured. The AJ found this incident was not similar to one experience by Complainant's co-worker to whom Complainant sought to compare himself. In that incident, a co-worker was stuck by a hypodermic needle requiring immediate medical attention. The AJ found the two situations were not comparable and that Complainant had not shown that a co-worker was treated better than he was.
The AJ concluded that Complainant presented no evidence from which an inference of discrimination on the bases of race or color could reasonably be drawn regarding any of the claims raised in his complaint. The Agency subsequently issued a decision adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
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 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 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 properly concluded that no genuine issues of material fact remained to be decided in this case. In his Notice of Removal, Complainant was charged with failure to follow instructions and unacceptable performance. The AJ found that Complainant did not dispute the charges described in the Notice. The record reveals that during the investigation of Complainant's complaint, E1 (a co-worker Complainant identifies as an example of an employee treated preferentially), was also charged with unacceptable performance. Complainant was removed from his position, while E1 was suspended from duty. The evidence shows that Complainant was charged with losing an article of certified mail and failing to conduct multi-service point (MSP) scans. E1 was charged with failing to deposit collected mail into an outgoing mail hamper. Drawing the reasonable inference in Complainant's favor, we find the infractions are not similar. We find that while both employees were accused of misplacing mail, Complainant was removed following a series of performance issues, while E1 was not. We find that the difference in punishment was because Complainant's charges involved both his multiple failures to follow instructions as well as a performance issue while E1's charges involved only unacceptable performance, and that Complainant's infractions involved more pieces of mail. We find, as did the AJ, that E1 and Complainant were not similarly situated for purposes of Title VII.
Regarding claims (1), (2), and (3), we agree with the AJ that Complainant has failed to show how these alleged Agency actions were motivated by discrimination or that such claims, even if true, were sufficiently severe or pervasive so as to constitute a hostile work environment. In summary, we find there are no material facts to be resolved by a hearing and we find that judgment as a matter of law for the Agency was properly granted.
CONCLUSION
We AFFIRM the Agency's decision finding no discrimination.
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
September 26, 2012
__________________
Date
2
0120111666
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111666