0120123505
02-21-2013
William Jackson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
William Jackson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120123505
Hearing No. 430-2010-00287X
Agency No. 1K281000210
DECISION
On September 13, 2012, Complainant filed an appeal from the Agency's August 17, 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., 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's Charlotte Processing and Distribution Center facility in Charlotte, North Carolina.
On January 29, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability1 (Anxiety), age (born in 1954), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On October 14, 2009, and again on November 16, 2009, Complainant was denied an interview for an MPE 9 position and was rated ineligible; and
2. Since December 17, 2009, Complainant has been subjected to retaliatory harassment.
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 motion for a decision without a hearing and issued a decision without a hearing on August 8, 2012. Specifically, the AJ found that the Agency articulated a legitimate nondiscriminatory reason for denying Complainant any interviews on the grounds that Complainant was ineligible for the position. The AJ further found that Complainant failed to establish that the Agency's articulated reason was a pretext for discrimination. The AJ noted that Complainant failed to show that management officials harbored any animus towards his protected bases, and failed to identify any similarly situated outside of his protected bases who were treated differently. With regard to the harassment claim, the AJ found that the alleged actions were insufficiently severe or pervasive to constitute harassment. 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.
ANALYSIS AND FINDINGS
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 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 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. 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).
Disparate Treatment.
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
The AJ found that the Agency articulated a legitimate nondiscriminatory reason for its action and it was therefore unnecessary to determine whether Complainant established a prima facie case. Specifically the AJ found that Complainant was administered a preliminary interview to determine his eligibility to progress to the final interview stage. The AJ further found that the interview panel asked standardized questions and entered Complainant's responses into the Agency's Assessment Website, which assessed Complainant as being "ineligible" to be placed on the MPE Register and progress to the full interview. The AJ found it to be an undisputed fact that "the panel did not determine eligibility or ineligibility" but that instead it was the "computerized system" that did. See AJ's Decision, p. 2. A review of the record shows that one of the panel members (PM1: 53 years at time of incidents, no claimed disability) averred that
The Complainant was asked a series of questions related to each competency and was assessed a rating based on his responses. His rating was entered into the [Agency's] Assessment Website and the system assessed that the complainant was ineligible. This process is used to assess the ratings for all employees.
Report of Investigation (ROI), Affidavit D, p. 6.
The other two panel members (RM2: 64 years at time of incidents, no claimed disability & RM3: 51 years at time of incidents, no claimed disability) told the same story. See ROI, Affidavit E, p. 5, Affidavit F, p. 5. We therefore find that the AJ's finding in this regard is supported by substantial evidence. Complainant has not raised a material issue of fact concerning how the responses were evaluated. The Agency having articulated a legitimate reason for its action, the burden thus returns to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason is a pretext to mask discrimination. Burdine.
The AJ found that Complainant failed to meet his burden of establishing pretext. The AJ noted that Complainant failed to show that the criteria used for determining eligibility were "compromised by a proscribed factor or an improper consideration," AJ Decision, p. 5, footnote 5, or that "the panel asked questions of Complainant that it did not ask of other candidates, or that individually or collectively the interview process was compromised to any extent based on Complainant's membership in a protected category." Id., p. 6. The AJ further noted that one individual identified by Complainant as a comparator was also rated ineligible, as was Complainant, and therefore Complainant could not show that the comparator had been treated better than Complainant, while others were not similarly situated, having "different job titles, different job duties, different shifts, and/or different supervisors, among other things." Id., p. 7. Finally we note that all of the panel members denied being aware of Complainant's age or disability, or that he had engaged in prior protected activity. See ROI, Affidavits D, E & F. Complainant did not submit an appellate brief and has not shown the presence of a material issue, nor has he shown that the Agency's articulated reason for its action is a pretext for discrimination, or otherwise shown that discrimination occurred as alleged.
Hostile Work Environment.
Complainant contends that on December 17, 2009, a Supervisor (S1: 52 years at time of incidents) told him that his work was "inadequate." Complainant further contends that his workload was increased from 7 1/2 hours to over 10 hours. Complainant next states that on December 21, 2009, S1 asked Complainant why he did not use the restroom close to his work area. On December 22, 2009, S1 contacted Complainant on his radio and inquired into his whereabouts. S1 informed Complainant that his dusting was insufficient and called him a "liar." On December 31, 2009, S1 instructed Complainant to vacuum six AFCS machines, perform routes at DPRC, mail search, and vacuum one of the machines, while other workers were not performing work related tasks. On January 20, 2010, S1 went to the break room to watch Complainant. When Complainant left the break room, S1 followed him and told him that he needed to get back to work. S1 declined Complainant's request to see the shop steward. Later that day, S1 told Complainant that in future he should take his lunches at 2:30 a.m. rather than at 3:30 a.m. On an unspecified date, another Supervisor (S2: 45 years at time of incidents) told Complainant to remove his car from a handicapped parking space after Complainant parked there while recovering from foot surgery. On unspecified occasions "toxic chemical fumes and open chemicals [were] left in [Complainant's] work area" instead of their appropriate location.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
The AJ found that the actions complained of were insufficiently severe or pervasive to constitute harassment. Following a review of the record, we agree. We further note that Complainant has not shown that any of the actions were either based on, or involved, his protected bases. With regard to his exposure to toxic chemicals, Complainant has listed his disability as anxiety and not chemical sensitivity and hence we do not find this incident, or incidents, to be either based on, or to involve, his protected bases. Nor do we find this incident, whether considered alone or together with the other claimed incidents, to be sufficiently severe so as to alter the conditions of Complainant's employment. Furthermore while there is a discrepancy between S1's contention that management took prompt corrective action regarding the toxic chemicals, see ROI, Affidavit B, p. 22, and Complainant's more generalized claim that management refused to take his harassment allegations seriously and would "blow me off," ROI, Affidavit A, p. 16, we do not find such a discrepancy to be material since Complainant has not claimed discrimination based on chemical sensitivity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown the presence of a material fact or met his burden of establishing, by a preponderance of the evidence, that discrimination or reprisal occurred. We therefore AFFIRM the 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 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
February 21, 2013
__________________
Date
1 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
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0120123505
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123505