0120082255
10-22-2010
Peter J. Labella, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Peter J. Labella,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120082255
Hearing No. 541-2006-00197X
Agency No. 4E-800-0182-06
DECISION
On April 15, 2008, Complainant filed an appeal from the Agency's March 21, 2008, 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 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.
ISSUES PRESENTED
The issues presented on appeal are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ correctly found that Complainant failed to demonstrate that the Agency's proffered explanation for imposing a seven-day suspension and requesting information about his driving record was pretext for discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Letter Carrier at the Agency's Erie, Colorado Post Office. The record reveals the following facts: On March 30, 2006, the Postmaster (PM) issued Complainant a Notice of 7-Day Paper Suspension. ROI at Ex. 3, p. 1. Three separate incidents were cited for the suspension. Specifically, on Marcy 7, 2006, Complainant engaged in a verbal altercation with a co-worker, to which the Postmaster was a witness. Id. As a result, he was charged with "unacceptable conduct - threatening behavior." Id. Complainant was also charged with two incidents of "failure to follow instructions." One charge resulted from complaints the PM received on March 9, 2006, that Complainant had damaged a customer's landscaping. Id. The second charge resulted from Complainant's "failure to timely report an on-the-job injury" when Complainant called the PM on March 12, 2006, to report that he had been injured on the job on March 10, 2006. Id.
On May 17, 2006, Complainant requested a limited-duty position to accommodate his medical restrictions. ROI at Ex. 7. On May 19, 2006, PM requested additional information from Complainant before making a determination concerning a limited-duty position. PM requested a CA-17 form stating Complainant's medical restrictions and a current DMV driver's abstract to determine whether he was still qualified to drive with his medical restrictions as required for his bid position. ROI at Ex. 8. On June 6, 2006, Complainant responded to PM, but failed to provide a DMV driver's abstract. On June 9, 2006, Complainant provided his DMV driver's abstract. ROI at Ex. 10.
Meanwhile, on June 8, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), disability, and reprisal for prior protected EEO activity when:
1. on March 30, 2006, the Agency issued Complainant a "Notice of 7-Day Suspension"; and
2. on May 19, 2006, he was required to provide a current Department of Motor Vehicles driver's abstract.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. On January 3, 2007, the Agency filed a Motion for Decision without a Hearing. Complainant filed a response on March 3, 2007. Complainant filed a number of motions in order to amend his Complaint. On March 18, 2008, the AJ declined to amend Complainant's pending complaint and remanded the issues to the Agency for further processing. Over Complainant's objections, the AJ issued a decision without a hearing on March 18, 2008.
The AJ relied upon the Agency's recitations for the undisputed material facts. The AJ found that, even assuming that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The AJ further found that Complainant failed to establish that the Agency's proffered reasons were a pretext for discrimination. 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
On appeal, Complainant argues that the AJ erred in granting summary judgment where he established a prima facie case of disability or perceived disability. Complainant also argues that direct evidence of disability discrimination existed such that summary judgment was unwarranted. Complainant further argues that there are credibility issues and issues of material fact that preclude summary judgment, and that he established that the Agency's reasons were a pretext for discrimination. Complainant also argues that the AJ erred in deciding the motion for a decision without a hearing before addressing the motions to amend. The Agency requests that we affirm the final order adopting the AJ's finding of no discrimination.
STANDARD OF REVIEW
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 EEO Management Directive 110 (MD-110), Ch. 9, � VI.B. (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").
ANALYSIS AND FINDINGS
Summary Judgment
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 administrative judge 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's issuance of a decision without a hearing was appropriate. The record has been adequately developed. Complainant was given notice of the Agency's motion to issue a decision without a hearing. He was given an opportunity to respond. He was given a comprehensive statement of undisputed facts and had the opportunity to engage in discovery.
We note that on appeal, Complainant makes numerous arguments regarding the credibility of witnesses and their testimony. Complainant also argues that the AJ erred in deciding the motion for a decision without a hearing before addressing the motions to amend. Complainant also points to numerous alleged disputes of material facts. We find that Complainant has failed to show that any credibility issues exist based on concrete evidence in the record. Further, we find that the AJ did not abuse her discretion when she chose to rule on all pending motions to amend when she issued the decision in this case. We conclude that the AJ appropriately determined that no genuine issues of material fact exist such that a hearing is warranted in this case.
Direct Evidence
Complainant contends that the record contains direct evidence of discrimination. Complainant argues that the PM provided direct evidence of discrimination because the reason given to the EEO Counselor for issuing the 7-day suspension conflicted with reasons given in the Notice of the 7-day suspension. Complainant's Brief at 12. Direct evidence of discriminatory motive may be any written or verbal policy or statement made by a respondent or respondent official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action. Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, � III(A) (July 14, 1992). We find that a mere alleged conflict of PM's rationale for disciplining Complainant does not establish direct evidence.2 Accordingly, we find that Complainant has failed to establish that direct evidence of discrimination exists.
Disparate Treatment
Because we find that no direct evidence of discrimination exists, we turn to Complainant's burden to prove he was discriminated against as alleged. To prevail in a case 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). He must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We note that the AJ adopted the statement of facts contained in the Agency's motion for a decision without a hearing. We remind the AJ that it is part of the AJ's duties to set forth an independent statement of facts. Nonetheless, we find that considering the record in the light most favorable to Complainant, and affording him all of the favorable inferences to be drawn from the record, he has failed to establish that genuine issues of material fact exists such that a hearing was warranted.
Assuming, arguendo, that Complainant established a prima facie case, we find that the Agency articulated a legitimate, non-discriminatory reason for its actions. Specifically, with regard to claim 1, PM attested in a sworn statement that Complainant engaged in prohibited behavior from March 7 to March 12, 2006. PM Affidavit at 3. On Marcy 7, 2006, Complainant engaged in a verbal altercation with a co-worker, to which PM was a witness. Id. at 4. As a result, he was charged with "unacceptable conduct - threatening behavior." Id. Complainant was also charged with two incidents of "failure to follow instructions." Id. PM received a written complaint from two sisters living in two separate locations that Complainant was intentionally driving on their landscaping and using his car to push one of the sister's trash cans. Id. at 3. Lastly, Complainant called PM on March 12, 2006, to report that he had been injured on the job on March 10, 2006. Id. PM testified that this was beyond the requisite 48-hour reporting period for an on-the-job injury. Id.
With regard to claim 2, PM further attested that Complainant reported several months ago that he had received an eight-point traffic ticket for speeding and reckless driving. Id. at 5. PM further testified that Complainant had a poor driving record when he was hired, which included five citations. Id. PM stated that "the driver's abstract was requested to determine if he still had a valid license. When we put together a modified limited-duty assignment letter, we would need to know if we could give him driving duties. Secondly, if he no longer had a valid license, he would have to relinquish his bid position ...." Id.
Turning to Complainant's burden to prove that the Agency's explanation is pretext, we find that Complainant failed to provide any evidence that the Agency's reasons were a pretext for discrimination. With regard to claim 1, Complainant alleges that the incidents did not occur as PM determined that they did. However, we find that nothing supports Complainant's contentions that the incidents did not occur as attested to by PM in his affidavit. We note that the record contains documentary evidence to support PM's determinations. Complainant's unsupported assertions otherwise are not sufficient to call into question the Agency's proffered explanation.
With regard to claim 2, Complainant primarily argues that PM's request for the DMV's driving abstract was directed at Complainant with the intention of terminating Complainant from his position. We find that nothing in the record supports Complainant's assertion. Further, nothing in the record supports Complainant's contentions that the Agency was motivated by discriminatory animus. We note that Complainant failed to proffer any evidence and instead cites to his own assertions contained in other unsworn documentation. This is insufficient to establish that the Agency's reasons are not worthy of credence.
Accordingly, we find that Complainant has not shown that a genuine issue of material fact exists so as to warrant a hearing. We further find that, drawing all justifiable inferences in favor of Complainant, he has failed to show that the Agency's explanation for its actions is a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Order implementing the AJ's decision.
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
October 22, 2010
Date
1 The record reflects that in its Partial Acceptance/Partial Dismissal of Formal EEO Complaint, dated June 16, 2006, the Agency dismissed a third claim in the complaint; whether, on an unspecified date or dates, the Agency interfered with Complainant's workers' compensation claim by providing false and irrelevant statements. The Commission exercises its discretion to review only the issue specifically raised in complainant's appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November 9, 1999). Because Complainant does not raise the dismissal of the third claim on appeal, the Commission declines to address it.
2 We note that Complainant has failed to show that a conflict existed, because he failed to cite to evidence in the record; instead, he relies on his assertions of alleged statements made by PM, which assertions are unsupported by any evidence of record.
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0120082255
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082255