0120102334
08-28-2012
Richard D. Crook, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Richard D. Crook,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120102334
Hearing No. 460-2009-00126X
Agency No. 4G-770-0053-09
DECISION
Complainant timely filed an appeal from the Agency's 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing in favor of the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Park Place Station in Houston, Texas. Report of Investigation (ROI), at 5. Complainant also served as a Union Steward for the Park Place Station. The Manager of Customer Service (MCS), Complainant's first-level supervisor (S1), the Supervisor of Customer Service (SCS), and the Postmaster were the four management officials who supervised Complainant. Id. at 7-8. Complainant is Caucasian and all four management officials are African-American. Id. Complainant filed Agency No 4G-770-0192-08 on June 30, 2008, citing S1 and the SCS as responsible management officials.1
On September 22, 2008, Complainant was reportedly instructed by the MCS to place his time-card on the MCS's desk and leave the premises. Id. at 150-151. Instead of leaving, Complainant reportedly went into another supervisor's office uninvited to have his time-card signed. Id. Complainant apparently interrupted the supervisor's meeting with another employee. Id. The MCS then reportedly instructed Complainant to leave the premises a second time, but Complainant did not comply. Id. On October 16, 2008, management observed Complainant using his cell phone while apparently delivering mail. Id. Management also saw that he was not using his mail pouch. Id. Complainant indicated that he was speaking with the union on his cell phone and was not in process of delivering mail. Id. Complainant also indicated that he told management that the strap on his mail pouch was broken. Id.
Complainant's schedule is generally 8:00 a.m. to 4:30 p.m. Id. at 17. However, on October 17, 2008, Complainant took a swing shift from 2:35 p.m. to 4:20 p.m. to close on a home. When Complainant returned to work at 4:20 p.m. he reportedly did not begin delivering mail but instead worked on union matters. Complainant started delivering mail at 6:00 p.m., but returned to the station at 8:23 p.m. with deliverable mail. Id. at 220. After returning to the station, Complainant gave the MCS an "Undeliverable Mail Report" and asked him to sign it. Id. at 150-151. Complainant noted in the report that he was experiencing blurred vision due to his diabetic condition and felt unsafe delivering mail that evening because of darkness. Id. at 156. The MCS instructed Complainant to leave the report on his desk and leave the premises. Id. at 150-151. However, Complainant reportedly insisted that the MCS sign it, but the MCS refused. Id. When the MCS tried to arrange for other carriers to go finish the delivery of Complainant' route, Complainant told carriers that, pursuant to the collective bargaining agreement, they had no obligation to do so. Id. at 221. The MCS and two other carriers then finished Complainant's route using flashlights.
Subsequently, on November 21, 2008, S1 issued Complainant a Notice of Proposed Removal for failure to follow instructions and unsatisfactory work performance. Id. at 150-152. The Proposed Removal noted:
On September 22, 2008, [Complainant] failed to follow instructions given to [him]. . . . On October 16, 2008, [Complainant was] observed on the route while in the process of delivering mail talking on [his] cell phone without a pouch. On October 17, 2008, [Complainant] returned to the station with deliverable mail. When instructed to return to the route and deliver the mail, [Complainant] refused.
Id.
Complainant contacted an EEO Counselor on December 8, 2008, and filed an EEO complaint on February 17, 2009, alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), age (46), disability, and reprisal for prior protected EEO activity when:
1. on November 21, 2008, he was issued a Notice of Proposed Removal;
2. on February 19, 2009, he was issued a letter of decision that reduced the removal to a 7-day suspension.
Thereafter, on February 19, 2009, the Postmaster reduced the Notice of Proposed Removal to a 7-day suspension. Id. at 157. The Postmaster indicated that he chose to impose the 7-day suspension based on the seriousness of the offense as it related to Complainant's position and length of service. Id. The union and the Agency subsequently agreed to reduce the 7-day suspension to a Letter of Warning. Id. at 19.
On April 27, 2009, Complainant amended his EEO complaint to allege that the Agency discriminated against him on the bases of race (Caucasian), sex (male), age (46), disability, and reprisal for prior protected EEO activity when, on March 25, 2009, he was issued a 7-day suspension for improper conduct.
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's November 3, 2009, motion for a decision without a hearing on March 26, 2010, and entered judgment in favor of the Agency. 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.
In particular, the AJ found that Complainant failed to establish a prima facie case of discrimination based on race and sex. The AJ noted that Complainant did not show that there were any other Letter Carriers who had the same number of incidents as he did. The AJ noted that Complainant presented evidence regarding his duties as a Union Steward rather than based on his race or sex. The AJ also found no evidence that the Agency's actions were based on Complainant's age. The AJ noted that Complainant did not show that he was treated less favorably than employees younger than he is. With regard to disability, the AJ noted that Complainant never requested reasonable accommodation for his medical condition. The AJ found that Complainant failed to show that the Agency's actions towards him were based on his medical condition. The AJ also found that although Complainant established a prima facie case based on reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not establish to be pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that African-American employees have been issued less discipline than he was. Complainant contends that African-American employees were issued letters of warnings and suspensions while he was issued a proposed notice of removal. Complainant contends that he had a clear disciplinary record before he was issued the proposed notice of removal. Complainant also contends that, although he used his cell phone, it was used while he was not in the process of delivering mail. Complainant additionally contends that an African-American employee was not disciplined for not wearing a mail pouch. Complainant also contends that he could not deliver all of his mail on October 17, 2008, because his vision was blurred due to his disability. Complainant lastly contends that management's contention that he interrupted a private meeting on September 22, 2008, is false.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 Chap. 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).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, at Ch. 7, � I.; see also 29 C.F.R. � 1614.109(e). We find that the AJ improperly issued a decision without a hearing because there are genuine issues of material fact and credibility at issue in this case as explained below.
Disparate Treatment
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 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). 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a prima facie case of discrimination on the basis of reprisal, a complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of his protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse action. See Whitmire v. Dep't of the Air Force, Appeal No. 01A00340 (Sep. 25, 2000).
Here, we concur with the AJ's finding that Complainant established a prima facie case of discrimination based on reprisal.2 There is no dispute that management was aware of Complainant's previously filed June 30, 2008, EEO complaint, naming S1 and the SCS as responsible management officials. Regarding the third prong of a prima facie case of reprisal, under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. EEOC Compliance Manual Section 8, "Retaliation" No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire, EEOC Appeal No. 01A00340. We find that the Notice of Proposed Removal issued to Complainant to be an action "reasonably likely to deter protected activity." Finally, with regard to the fourth prong, we find that a nexus exists between Complainant's June 30, 2008, EEO complaint and the November 21, 2008, Notice of Proposed Removal. We note that in the Notice of Proposed Removal, S1 cited to incidents concerning Complainant that occurred on September 22, 2008, which is less than three months after Complainant filed the June 30, 2008, complaint. Complainant's EEO case also was on-going when he received the Notice of Proposed Removal. Therefore, we concur with the AJ's finding that Complainant established a prima facie case of discrimination based on reprisal.
Once Complainant establishes a prima facie case of reprisal discrimination, the Agency has the burden of production to articulate a legitimate, nondiscriminatory reason for its actions. S1 noted that Complainant interrupted a supervisor's meeting with another employee on September 22, 2008. S1 also noted that Complainant was observed on one occasion on October 16, 2008, speaking on his cell phone and not using his mail pouch while in the process of mail delivery. S1 further noted that Complainant failed to finish his mail route on October 17, 2008, and instructed other employees that they did not have to finish his route.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Based on a review of the record, we find genuine issues of material fact exist as to whether the Agency has articulated legitimate, nondiscriminatory reasons that are worthy of belief. We note that Complainant asserted that he reported that his mail pouch was broken to management. Agency's Motion for Summary Judgment, at 18. Also, another employee indicated that he was never disciplined for not wearing his mail pouch. Complainant's Pre-Hearing Report, at C-42. Complainant further asserted that he was not in the process of delivering mail and was speaking with the union when he was talking on his cell phone. Complainant's Dep., at 53. Complainant also asserted that managers routinely called carriers on cell phones while they were delivering mail. Id. at 90. Further, there is no dispute that Complainant reported to management that he could not finish his mail route on October 17, 2008, because of blurred vision due to his diabetes. ROI, at 156. There is no evidence that Complainant failed to finish his mail route on other occasions.
Moreover, we find the lack of progressive discipline to be suspect. The removal letter does not cite any previous incidents of discipline, such as letters of warnings or suspensions. Id. at 150-152. Complainant testified that he had no record of being disciplined before he received the Notice of Proposed Removal. Complainant's Dep., at 89-90. Also, the record reflects that all other employees were disciplined with letters of warnings and suspensions. ROI, at 21. The record reflects that no other employee was issued a proposed notice of removal as Complainant was around that time. Id. We also find suspect that the Postmaster decided to lower the removal to a 7-day suspension just after Complainant filed the instant EEO complaint. Therefore, we find that a decision on the merits of Complainant's complaint is improper at this juncture, because summary judgment must not be used as a trial by affidavit. Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The credibility of Complainant, S1, and other management officials must be assessed through live testimony at a hearing.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and REMAND this matter for further processing in accordance with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Houston District Office a request for a hearing within 15 calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on claims 1 and 2 in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
August 28, 2012
Date
1 The Agency issued its final decision on December 8, 2008, with respect to that complaint. Complainant did not appeal that decision to the Commission.
2 We assume for purposes of analysis, without so finding at this time, that Complainant has established a prima facie case of discrimination with regard to race, sex, age, and disability.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120102334
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102334