0120080265
04-16-2010
Michael E. Garrett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Michael E. Garrett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120080265
Hearing No. 480-2008-00274X
Agency No. 4F900026107
DECISION
On August 17, 2009, complainant filed an appeal from the agency's
July 31, 2009 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.1 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
1. Whether the EEOC administrative judge (AJ) was correct to issue a
decision without a hearing.
2. Whether the AJ was correct that complainant was not subjected to
a hostile work environment on the bases of reprisal and disability
discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a mail carrier at the agency's Palms Station facility in Los Angeles,
CA. On September 16, 2007, complainant filed an EEO complaint alleging
that he was subjected to a hostile work environment on the bases of
disability (foot pain) and reprisal for prior protected EEO activity
when:2
1. management accused him of not following rules when he did not honor
vacation hold requests for a customer on his mail carrier route;
2. he was questioned by his supervisor about a change of an address form
for a customer on his mail carrier route;
3. management sent a carrier to bring express mail to him while he was
already on his mail carrier route;
4. his supervisor yelled at him and threatened to send him home;
5. from August 11 to August 17, 2007, he was charged with being Absent
Without Official Leave (AWOL) for being absent from work for five
consecutive days due to an ailment with his feet;
6. management told him that he was not wearing his proper uniform shirt;
and
7. he was charged AWOL because he went to his doctor's appointment
despite his supervisor's request to reschedule that appointment.
As to claim (1), the record reflects that complainant was refusing to
honor vacation hold requests of customers, and management was simply
inquiring of complainant why he was not honoring such requests. As
to complainant being questioned about a change of address form for a
customer, the record indicates that a family on complainant's route was
not receiving mail and management was attempting to fix this error so
that the family could properly receive their mail again. With regard to
claim (3), the record reflects that management sent a carrier to bring
express mail to complainant because these pieces of mail needed to be
delivered as part of the normal process.
With respect to claim (4), the record indicates that complainant's
supervisor yelled at him because she was concerned that he was being
disrespectful to her. As to claim (5), complainant's request for sick
leave for his foot pain, the agency articulated that complainant never
provided a reason to management for his absence; therefore, without having
notice of the reason for complainant's absence, he was charged AWOL and
had to wait until the next pay period to be paid. As the record reflects,
complainant was subsequently paid for those days missed.3 Regarding
claim (6), complainant not wearing his uniform, he admitted that he
was wearing a t-shirt on the day in question and agency policy requires
employees to be dressed in their proper uniforms. As for the denial of
complainant's leave request for his doctor's appointment (claim (7)),
complainant's supervisor requested that he reschedule that appointment
because of a staffing scheduling conflict within the post office. The
record reflects that management would have given complainant leave if
he would have rescheduled his doctor's appointment, or if he would have
made arrangements with another employee to switch schedules.
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 February 26, 2009 motion for a decision without
a hearing and issued a decision without a hearing on July 19, 2009.
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, with respect to claims (1) through (3), that the actions of
the agency were not so severe that a reasonable person would have been
deterred from engaging in EEO activity, and that the agency established
legitimate nondiscriminatory reasons for its actions. Specifically,
as to complainant being questioned about a change of address form,
the AJ indicated that since the postal service is in the business
of delivering mail, it must correct internal errors. With regard to
management bringing express mail to complainant while on his route, the
AJ noted that complainant was sent this express mail because it had to
be delivered right away.
As to claims (4) through (6), the AJ determined that the agency
established legitimate nondiscriminatory reasons for its conduct.
Specifically, the reason that complainant was yelled at was because he
was being loud and disrespectful to his supervisor. Also, the AJ noted
that, for the period of August 11 to August 17, 2007, complainant did
not state the reasons why he would not be into work when on the phone
with his supervisor. By the time complainant returned to work the pay
period had closed, so he had to wait until the following pay period to
be paid for sick leave. Further, complainant admitted he wore a t-shirt
instead of his proper work uniform.
For claim (7), the AJ determined that the agency was correct to charge
complainant with AWOL because he went to his doctor's appointment despite
his supervisor's request to reschedule that appointment. Complainant
was asked to reschedule his appointment because there was a problem with
staffing on that particular day, and complainant never expressly told his
supervisor that he had been waiting two months for that appointment. Also,
the AJ determined that these incidents were not sufficiently severe and
pervasive to constitute as actionable harassment.
On appeal, complainant argues that the AJ improperly issued a decision
in favor of the agency. Complainant reiterates the fact his supervisor
harassed and threatened him. Specifically, complainant contends that
a pattern of harassment continued after a February 23, 2007 mediation
conference held at his post office station.
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").
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). We
find that the AJ properly issued a decision without a hearing because
complainant failed to show that a genuine issue of material fact or
credibility existed.
To prevail in a disparate treatment claim, 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 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).
Assuming arguendo that complainant established a prima facie case
of discrimination based on disability and reprisal,4 we find that
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant now bears the burden of proving by a preponderance
of the evidence that the agency's articulated reasons were a pretext
for discrimination. Complainant can do this directly by showing that
the agency's preferred explanation is unworthy of credence. Burdine,
450 U.S. at 256. Upon review, we concur with the AJ's determination
that complainant failed to provide any evidence of pretext in the
record. Furthermore, we find that the record is devoid of any evidence
that the agency's actions were motivated by discriminatory animus
towards complainant's disability or in reprisal for his prior protected
activity.
Finally, to the extent that complainant is alleging that he was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Fork-lift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A finding that complainant was subjected to a hostile work
environment is precluded by our determination that complainant failed
to establish that any of the actions taken by the agency were motivated
by discriminatory animus. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue of
material fact is in dispute. Complainant also failed to present evidence
that any of the agency's actions were motivated by discriminatory
animus towards her because of her disability or previous EEO activity.
We discern no basis to disturb the AJ's decision. Accordingly, after a
careful review of the record, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
____4/16/10______________
Date
1 The agency originally issued a final order, dated October 4, 2007,
dismissing complainant's formal complaint for procedural reasons.
Complainant filed a timely appeal from the agency's order. In October
2007, the agency subsequently rescinded its final order and accepted
complainant's complaint for investigation. The parties, however, did
not inform the Commission of this change in status.
2 On November 29, 2007, complainant amended his complaint adding that
he was denied leave for a doctor's appointment, and that he was harassed
for not wearing his proper work uniform.
3 Complainant's time and attendance collection records indicate that he
was charged AWOL on August 10, 2007; however, from August 11 to August
17, 2007, complainant was either at work or given sick leave for the
days that he missed. Report of Investigation (ROI), Exh. 3.
4 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0120080265
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080265