0120121595
07-24-2012
Thomas R. Wagner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Thomas R. Wagner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120121595
Hearing No. 530-2099-00147X
Agency No. 4A-088-0096-08
DECISION
Complainant filed a timely appeal from the Agency's February 1, 2012, 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 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS-22, at the Agency's Lakewood, New Jersey Post Office facility in Lakewood, New Jersey. He had been detailed to the position from his position as Postmaster of the Brick, New Jersey Post Office. On May 12, 2008, the Manager of the Postal Operations (POOM) of the Lakewood, New Jersey Post Office notified Complainant that Complainant was being laterally reassigned to the Lakewood Post Office to meet the operational needs of the Agency.
On October 22, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and sex (male) when the Agency permanently reassigned him to the Lakewood Postmaster position.
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. When Complainant did not object, the AJ assigned to the case granted the Agency's June 8, 2009, motion for a decision without a hearing. She issued a decision without a hearing on January 27, 2012.
The AJ determined that the parties had been provided adequate time to engage in discovery, and that Complainant had been provided with the Agency's motion and had an opportunity to respond to the motion. The AJ had not received any opposition to the Agency's motion. The AJ also determined that the record was adequate for a summary determination and that there were no material facts in dispute and no credibility issues that would warrant a hearing.
The AJ found that Complainant failed to establish his prima facie case because he did not show that he was treated differently than others similarly situated and had not shown that he lost any pay or benefits as a result of the reassignment. The AJ then reasoned, that even assuming the facts in the light most favorable to Complainant, Complainant did not show that the Agency's actions were based on his race or his sex.
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.
The undisputed record shows that the deciding official was the POOM, who is an Asian male. He laterally reassigned Complainant to be the Postmaster at Lakewood, where Complainant had been detailed. The detail was made permanent, on May 30, 2008, with the issuance of a PS Form 50.
The Agency's procedures permit the reassignment of non-bargaining employees to meet the operational needs of the Agency. Complainant is a non-bargaining employee.
The record also reflects that the Postal Service Employees and Labor Relations Manual ("ELM") Section 353.22 provides employees who desire reassignment with the opportunity to nominate themselves if they are seeking a reassignment. Complainant did not request a reassignment and gave the Agency notice that he was not interested in a lateral move. Complainant was not opposed to a move that would provide additional monetary benefits. Specifically, Complainant concedes that he was not opposed to staying in a detail assignment and being compensated and given the perks of a person on a detail, as compared to a person on permanent assignment.
In addition, the record reflects that Complainant's grade and salary remained the same, but the Lakewood location is one mile further away from Complainant's home the Brick Post Office. Complainant asserted that he could be impacted by a lower National Performance Assessment rating. An EAS employee's overall performance rating is used to determine the level of compensation payable to the employee.
Complainant identified four women whom he maintains were similarly situated and who were afforded better treatment than he received. The record reflects that none of the women were involuntarily and permanently reassigned. Comparator one (Asian woman) was reassigned, but to an acting position, when her detail ended. Similarly, Comparator two (female, race unspecified) was not permanently reassigned to another location. Comparator three (Caucasian female) was detailed to another position, but the Agency permitted her to apply for the permanent position. She was not involuntarily reassigned to it. Comparator four (Hispanic female) was detailed as the acting postmaster at two locations, before she applied for her subsequent permanent position.
The reassignment decision stated that the reassignment was done to meet the operational needs of the Agency. Complainant had long-term expertise in turning around under-performing offices; and the POOM believed that the reassignment was in the Agency's interest because Complainant had the knowledge and skills to manage the specialized operation of the Lakewood Post Office Delivery Bar Code Sorting machines system.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency violated the Employees and Labor Relations Manual and erred in its finding that Complainant was not negatively impacted by the decision. Complainant maintains that he had furnished examples of female employees who were similarly situated and not reassigned. He argues that he was penalized for what he did well by being forced into a poorly performing office.
ANALYSIS
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, at 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"). In other words, we are free to accept (if accurate) or reject (if erroneous) the 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). 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).
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.
In this case, we find that the record is appropriate for summary judgment because the record was adequately developed and the undisputed facts provide a basis upon which the Commission can enter judgment as a matter of law.
To prevail in a disparate treatment claim such as this, Complainant would have to show that the Agency subjected him to an adverse employment action under circumstances that would support his claim of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). We recognize that the Agency's removal of Complainant from his detail status and involuntarily reassigning Complainant, but not others outside his protected group, supports an inference of retaliation.
This prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-717 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 0595042 (November 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 Products, Inc., 530 U.S. 133 (2000).
Here, Complainant disagrees with the Agency's action to permanently reassign him. He maintains that his rightful place was at the Brick Post Office and that the Lakewood Post Office was "not capable of reaching the prescribed goals as easily" as Complainant's former office because the Lakewood Post Office had staff and budget shortages. Assuming that to be true, that does not prove that the Agency's stated reason for reassigning Complainant (to meet the operational needs of the Agency) was a pretext for discriminatory animus. Complainant does not dispute that he possessed the unique skills that the POOM believed he had or that the POOM used his managerial discretion to reassign Complainant to the location where the POOM perceived Complainant's talents could best meet the operational needs of the Agency. In this case, Complainant failed to provide evidence that the Agency's stated reason was a pretext for unlawful discrimination. We find, therefore, that the entry of summary judgment was appropriate, for the reasons stated herein.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order.
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 tends 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
July 24, 2012
__________________
Date
2
0120121595
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121595