0120101528
03-29-2011
Walter E. Pfieffer, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area-Charlotte), Agency.
Walter E. Pfieffer, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area-Charlotte),
Agency.
Appeal No. 0120101528
Hearing No. 430-2009-00472x
Agency No. 1K-276-0012-08
DECISION
On February 18, 2010, Complainant filed a timely appeal from the Agency's
January 27, 2010, 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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 in this appeal are (i) whether the Administrative
Judge (AJ) properly issued a decision without a hearing; and (ii)
whether the AJ found correctly that the Agency did not discriminate
against Complainant as alleged.
BACKGROUND
On March 25, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of race (Caucasian),
disability (sleep disorder, epilepsy, dyslexia), age (57), and in
reprisal for prior protected EEO activity when: (a) on October 12,
2007, the Agency placed him in emergency off-duty status; and (b) on
November 16, 2007, the Agency issued him a Notice of 14-day suspension.
Following an investigation, Complainant timely requested a hearing.
The Agency filed a Motion for summary judgment on February 20, 2009,
and Complainant answered on March 23, 2009.1 On October 29, 2009, the
AJ issued a summary judgment decision and found that the Agency did not
discriminate against Complainant as alleged. The Agency subsequently
issued a Final Order adopting the AJ's conclusion that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.2
At the time of events giving rise to this complaint, Complainant
worked as a Labor Custodian Group Leader at the Raleigh, North
Carolina, Production and Distribution Center. On October 12, 2007,
Complainant and a co-worker (mail handler; African-American, 43)) (CW1)
engaged in a physical altercation with an unsuitable exchange of words.
Complainant's supervisor (S1) consulted with higher-level managers and,
in accord with the Agency's Zero Tolerance for Violence policy, the
Agency placed both employees on emergency off-duty status. After an
investigation, Complainant received a suspension of 14 days for the
altercation on November 16, 2007; CW1 received a Notice of Removal.
On January 16, 2008, the Agency and the Union entered into a settlement
agreement (SA) pursuant to the grievance procedure. By this SA,
the Emergency Placement was expunged, the Notice of suspension was
rescinded and reduced to an official discussion, and Complainant was paid
$2,265.00 for time missed; Complainant did not sign the SA. In closing,
the parties asserted that "The signing of this agreement constitutes a
full and complete settlement of the subject grievance and resolves all
issues pertaining thereto." Thereafter, on March 24, 2008, Complainant
filed his formal complaint.
The AJ found that Complainant engaged in activity in violation of the
Agency's Zero Tolerance policy and that Complainant did not show that
the disciplinary actions taken by the Agency were based on his race,
age, disability, or prior EEO activity.
CONTENTIONS ON APPEAL
Complainant did not submit comments in support of his appeal. However,
in his response to the Agency's Motion for summary judgment and the AJ's
Notice, of relevance to this decision, he voiced objection to the Agency's
filing and provided comments on its statement of material facts. He also
requested that the AJ proceed "without interference from the Agency"
and to ignore its motion. He asserted that he was not the aggressor
and should not have been sent home.
The Agency submitted a brief in opposition to the appeal and argued that
the Agency had legitimate, nondiscriminatory reasons for its actions,
in that, because both parties engaged in actions in violation of the Zero
Tolerance policy, it sent both parties away from the facility pending an
investigation by the Postal Inspection Service (PIS). Following that
investigation, the Agency issued Complainant a suspension, because
PIS found that he bore some responsibility for the event through verbal
jibes, especially about CW1's mother that contributed to the altercation.
The Agency also contended that Complainant did not carry his burden to
demonstrate pretext.
ANALYSIS AND FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
(MD 110) Chapter 9, � VI.A. (November 9, 1999).3
Summary Judgment
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56. 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). The AJ may properly issue a decision
without 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. 0120024206 (July 11, 2003).4
In ruling on a motion for summary judgment, a fact-funder's function
is not to weigh the evidence but rather to determine whether there are
genuine issues for a hearing. Anderson v. Liberty Lobby, Inc., 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. In this matter, we find that summary judgment was proper, in
that the record is adequately developed for a decision on the merits,
and no genuine issues of material fact or credibility determinations
remained to be decided. After review, we find that the AJ properly issued
a decision without a hearing on this record and that his determination
met the standards set out in Petty v. Department of Defense, supra.
Legal Framework
In this matter, Complainant has alleged discrimination based on race, age,
disability, and reprisal. The legal analysis in a disparate treatment
claim such as this is a three-part evidentiary scheme fashioned by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). First, Complainant must 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).5 Next,
the Agency must articulate legitimate and nondiscriminatory reasons for
its conduct. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981); see U.S. Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983). Finally, to ultimately prevail, Complainant
must show, by a preponderance of the evidence, that the Agency's
explanation for its action is a pretext for discrimination, i.e.,
that the Agency's reason was not its real reason and that it acted on
the basis of discriminatory animus, here, race, disability, age, or
in reprisal. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 33 (2000); Texas
Dep't of Community Affairs v. Burdine, supra.
Analysis of claims based on age discrimination follow the McDonnell
Douglas scheme. Under the ADEA, it is "unlawful for an employer...to
fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's age." 29 U.S.C. � 623(a)(1). When a Complainant claims
unlawful age discrimination, the Agency's "liability depends on whether
the protected trait of age actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). "That is,
[Complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the outcome."
Id.
A Complainant may establish a prima facie case of reprisal by showing
that: (1) they engaged in prior protected activity; (2) the alleged
discriminating Agency official(s) was aware of the protected activity;
(3) subsequently, Complainant was subjected to adverse treatment; and
(4) a nexus or causal connection exists between the protected activity
and the adverse treatment. Coats v. EEOC, EEOC Appeal No. 0120044333
(May 17, 2007); see Whitmire v. Department of the Air Force, EEOC
Appeal No. 01A00340 (September 25, 2000). Protected activity is action
taken in opposition, i.e., opposing a practice made unlawful by an EEO
statute, or participation in an EEO activity, i.e., filing a complaint,
testifying, assisting, or participating in any part of the EEO process.
See EEOC Compliance Manual, Section 8: Retaliation.
To determine whether Complainant is entitled to protection under the
Rehabilitation Act, we must first determine whether he is a qualified
individual with a disability. See 29 C.F.R. Part 30 and the Appendix
to Part 1630-Interpretive Guidance on Title I of the Americans
With Disabilities Act. If Complainant shows that he is a qualified
individual with a disability, we apply the scheme found in McDonnell
Douglas Corp. v. Green, supra.
Legal Analysis
For purposes of further discussion but not finding, we will assume
that Complainant established a prima facie case on all bases that
he alleged. Moving to the next step of the three-part analysis, we
consider the Agency's articulation of its reasons for its actions.
The Agency explained that it placed Complainant on emergency off-duty
status and issued discipline to him, because the PIS investigation found
him to have some responsibility for the altercation on October 12, 2007,
when he made remarks to CW1 about his mother. We find that the Agency
articulated legitimate and nondiscriminatory reasons for its actions.
In the final step of our analysis, the ultimate burden of proof returns
to Complainant to demonstrate by a preponderance of the evidence that
the Agency's articulation was pretext and that its actions were based on
discriminatory animus, i.e., his race, disability, age, or in reprisal.
Complainant did not present evidence showing that the Agency based its
actions on his protected bases. That Complainant felt that he was not
the aggressor and should not have been issued discipline does not show
pretext and is the determination flowing from the PIS investigation.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the Agency's final decision, because the AJ's
issuance of a decision without a hearing was appropriate, and the
preponderance of the evidence of record does not establish that
discrimination occurred.
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
__3/29/11________________
Date
1 In June 2009, a new AJ was assigned to this matter. In July 2009, he
issued a Notice of intent to issue a summary judgment, and both parties
responded in a timely manner. The AJ's Notice is not contained in the
record.
2 The Agency dismissed Complainant's claim that on February 27, 2008,
a co-worker allegedly verbally assaulted him, and management did not
properly investigate and protect him. Complainant did not object to the
dismissal of this claim before the AJ or the Commission. Thus, we will
not address this claim further and find that its dismissal is AFFIRMED.
3 References cited in this decision and other information are available
on the Commission's website: www.eeoc.gov.
4 Petty requires that, before issuing a summary judgment decision, an
AJ must ensure that Complainants (i) ample notice of the proposal to
issue a decision without a hearing, (ii) a comprehensive statement of
the allegedly undisputed material facts, (iii) the opportunity to respond
to a motion or an AJ's intention to issue a decision without a hearing,
and (iv) the opportunity to engage in discovery before responding,
if necessary. In opposing a decision without a hearing, the opposing
party must demonstrate that genuine material facts remain.
5 Evidence to establish a prima facie case of discrimination includes the
showing that a similarly situated employee outside of the Complainant's
purview (his race, age, disability, and prior EEO activity) was treated
more favorably. The Commission has long held that, for employees to be
considered similarly situated, they must report to the same management
officials, and all relevant aspects of their employment must be the
same as those of the comparative employee. O'Neal v. USPS, EEOC Request
No. 05910490 (July 23, 1991).
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0120101528
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101528