0120063613
07-18-2007
Steven D. Malone, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Steven D. Malone,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01200636131
Hearing No. 340-2005-00657X
Agency No. 1F-901-0008-057
DECISION
On May 27, 2006, complainant filed an appeal from the agency's May 3,
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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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 Processing Clerk, PS-05, at the agency's Worldway Airport Mail
Center (WAMC) facility in Los Angeles, California. On October 26, 2004,
complainant contacted an EEO Counselor and filed a formal EEO complaint
on February 22, 2005, alleging that he was discriminated against on the
bases of race (African-American) and age (D.O.B. 1/16/61) when, on October
13, 2004, management designated him as an unassigned clerk and reassigned
him from the Priority Mail unit at WAMC to the Los Angeles Processing and
Distribution Center (LA P&DC). Complainant further alleged that he was
treated differently than two non-African-American co-workers because they
received later reassignments to LA P&DC and letters stating that they may
be eligible for out of schedule pay as a result of the reassignment.
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. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and issued a decision
without a hearing on April 27, 2006. 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.
In her decision, the AJ found that complainant failed to establish
a prima facie case of discrimination on the alleged bases because he
failed to show that he was treated differently from individuals outside
his protected groups. Although the AJ noted that there seemed to be
problems concerning the operation of complainant's unit by management
and the tracking of employees by Human Resources, the AJ found that
these problems were not "personally directed" to complainant and that
all employees in complainant's unit were eventually transferred to LA
P&DC after the shutdown of the unit. Additionally, the AJ found that
the management reassigned complainant only two and half months earlier
than his co-workers and that his co-workers did not receive any out of
schedule pay as a result of the reassignment. The agency issued a final
order implementing the AJ's decision. On appeal, complainant asserts
that the AJ did not take into account all of the evidence in the case
when making her decision. In reply, the agency requests 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 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. 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).
To prevail in a disparate treatment claim in a Title VII and ADEA case,
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).
In this case, assuming complainant established a prima facie case of
discrimination on the alleged bases, we find that the agency articulated a
legitimate, nondiscriminatory reason for its action; namely, complainant
was in the system as an unassigned employee in the Priority Mail unit
and all such employees eventually received reassignments to LA P&DC
when the unit was abolished. The WAMC Plant Manager testified that on
June 10, 2002, management issued complainant a letter identifying him
as occupying an unneeded schedule and that on July 12, 2002, complainant
became an unassigned clerk. Additionally, management issued complainant
a letter on August 13, 2002, informing him that the Priority Mail unit
was being eliminated and that "[t]herefore, effective September 20, 2002
your bid assignment will be abolished and you will become an unassigned
regular." Management issued complainant a letter on October 13, 2004 for
reassignment to LA P&DC. The manager stated that complainant received
the same treatment as other employees reassigned to LA P&DC.
Next, we find that complainant failed to show that the agency's
explanation is a pretext for discrimination. Complainant attempts
to demonstrate pretext by showing that he was unfairly designated
as an unassigned employee and that two other reassigned co-workers
received assignments in, or were allowed to bid on, positions within the
Priority Mail unit at LA P&DC. The WAMC Plant Manager testified that
Human Resources gives the facility a listing of employees designated as
unassigned; she did not give any employees job assignments at LA P&DC;
and she did not know what bidding opportunities reassigned employees had
at LA P&DC. Additionally, she stated that she does not know complainant's
two co-workers and that, prior to a January 6, 2005 mediation session,
did not know complainant. Further, she indicated that at the time of
reassignment, she was not aware of the races or ages of complainant or
his two co-workers. The record reveals no evidence that management's
decision to reassign complainant or the terms of his reassignment were
based on his race and age rather than on his status as an unassigned
employee in an abolished unit.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.2 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
July 18, 2007
__________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
2 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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0120063613
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036