01a54594
12-15-2005
Andrezej J. Rafalski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.
Andrezej J. Rafalski v. United States Postal Service
01A54594
December 15, 2005
.
Andrezej J. Rafalski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital-Metro Area),
Agency.
Appeal No. 01A54594
Agency No. 4K-220-0110-03
Hearing No. 100-2005-00207X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Modified Clerk, PS-05, at the
agency's Fairfax Main Post Office facility, filed a formal EEO complaint
on September 10, 2003, alleging that the agency discriminated against him
on the bases of race (Caucasian), national origin (Polish), disability
and in reprisal for prior EEO activity (arising under Title VII and the
Rehabilitation Act) when on April 18, 2003, complainant became aware
that a Customer Service Representative vacancy (Vacancy Announcement
No. 03-027) had not been posted at his facility thereby denying him the
opportunity to apply for the position.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ granted the agency's motion for a decision without a hearing,
and ordered that complainant's disability claim be subsumed into the
Glover class action, Glover v. United States Postal Service, EEOC
No. 320-A2-8011X, Agency No. CC-801-0015-99.<1> Upon review of the
evidence, the AJ determined that the vacancy announcement in question
was properly posted at complainant's workplace, and that, regardless of
whether or not it was posted, the responding officials were unaware that
the vacancy even existed. The AJ concluded that there was insufficient
evidence to sustain a finding of discrimination. The AJ further
found that although it was undisputed that complainant had engaged in
prior protected activity and that the responding officials knew of this
activity, he failed to show any causal connection between the prior acts
and the agency's failure to post the vacancy. The agency's final order
implemented the AJ's decision.
On appeal, complainant contends that the AJ erred. He argues that he
had provided the AJ direct evidence of discrimination and points out
that the key witnesses in the case all testified that they did not know
of the vacancy posting. He insists that the Postmaster, who had been
detailed from the Fairfax facility to the Merrifield facility, knew of
the opening, concealed it from complainant and instead told the selectee
of the available position.
Legal Analysis
The Commission shall review the AJ's legal and factual conclusions, as
well as the agency's final order based on a de novo standard. See 29
C.F.R. � 1614.405(a); see also EEOC Management Directive 110, Ch. 9, �
VI.B (Nov. 9, 1999) (providing that an AJ's �decision to issue a decision
without a hearing ... will be reviewed de novo�). This essentially means
that we look at this case with fresh eyes, and we are free to accept
(if accurate) or reject (if erroneous) the AJ's and agency's factual
conclusions and legal determinations, including the ultimate fact of
whether discrimination occurred and a federal employment discrimination
statutes was violated. See id.
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. See 29 C.F.R. � 1614.109(g) (2004). 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. See 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. See id. at 249.
The pleadings, responses to discovery, affidavits, depositions, etc., must
show on their face that there are no genuine issues of material fact.
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. See id. at 255; see also Petty v. Dep't of
Defense, EEOC Appeal No. 01A24206 (July 11, 2003) (quoting Anderson,
477 U.S. at 249) (�The administrative judge may not issue a decision
without a hearing if he or she actually has to find facts first to do so.
According to the Supreme Court, �at the summary judgment stage the judge's
function is not... to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for trial.�).
Disparate Treatment
We disagree that complainant provided the AJ with direct evidence
of discrimination. The fact that none of the witnesses were sure
whether the vacancy announcement in question was posted at the Fairfax
station is not direct evidence of discrimination. Instead, we find
that complainant raises a claim relying on circumstantial evidence.
As such, it is examined under the three part test set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this
test, 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 Cntr. 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 Corp. v. Green, 411 U.S. 792, 802 (1973). 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.
We shall assume, without finding that complainant is an individual with
a disability within the meaning of the Rehabilitation Act. We further
assume that the facts are as complainant maintains � namely, that the
agency failed to post the vacancy announcement. Notwithstanding these
assumptions, however, we find that complainant fails to raise a prima
facie case of discrimination. The facts presented do not reasonably
give rise to an inference of discrimination. We simply cannot
conclude from the evidence that complainant's race, national origin
and disability were factors in not posting the vacancy announcement.
See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); see also Gower
v. United States Postal Serv., EEOC Request No. 05950089 (Feb. 1, 1996)
(requiring complainant to be able to point to some other evidence that,
if unrebutted, would at least permit an inference of discrimination).
Nevertheless, even if we were to assume that complainant satisfies the
threshold prima facie requirement, we find that he still fails to prove
his case by a preponderance of the evidence. The record shows that the
responding officials are not involved in posting vacancy announcements.
Instead, the Human Relations Specialist and EAS Vacancy Coordinator for
the NOVA Customer Service District is the one who disseminates the vacancy
announcements to area facilities. See Decl. of FMLA Coordinator for NOVA
Customer Service District. At the Fairfax station, the General Clerk
receives these announcements and posts them on the employee bulletin
board at the facility. See Affidavit E. The record also shows that
the position in question did not need to be posted at all according
to Handbook EL-350 because it was an EAS, or non-craft, position.
See Decl. of FMLA Coordinator for NOVA. The agency further explains
that the responding officials had no knowledge of the open position at
another facility. See Affs. B, C and D. Two responding officials were
not even working full-time at the Fairfax station during the relevant
time period. See Affs. B and D.
Complainant fails to counter this evidence and the agency's
non-discriminatory justifications with evidence of pretext. Having
reviewed complainant's pleadings, we find that his arguments rest
on his belief that the responding officials conspired against him.
The evidence however does not support his belief. �Mere conjecture that
[the] employer's explanation is a pretext for intentional discrimination
is an insufficient basis for denial of summary judgment.� Branson
v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988); see also
George v. United States Postal Serv., EEOC Appeal No. 01A31214, 2 (July
28, 2003). At all times the ultimate burden of persuasion remains on
complainant. The fact that there may be disagreement that the vacancy
announcement was posted is not enough to meet complainant's burden because
even assuming that the announcement had not been posted, we still do
not find sufficient evidence to support a finding of discrimination.
Retaliation
As with other bases, to establish a prima facie case of reprisal
discrimination complainant must present facts that, if unexplained,
reasonably give rise to an inference of discrimination. See Cardozo
v. Dep't of Homeland Security, EEOC Appeal No. 07A30014 (June 2, 2004).
Specifically, complainant may establish a prima facie case of reprisal
by showing that: (1) she engaged in protected activity; (2) the agency
was aware of the protected activity; (3) subsequently, she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse action. See McDonnell Douglas, 411
U.S. 792, 802 (1973); Hochstadt v. Worcester Found. for Exper. Biol.,
Inc. 425 F. Supp. 318 (D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to claims of reprisal); Coffman v. Dep't of
Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997). The nexus
may be shown by evidence that the adverse treatment followed the
protected activity within such a period of time and in such a manner
that a reprisal motive is inferred. See Clay v. Dep't of Treasury,
EEOC Appeal No. 01A35231 (Jan. 25, 2005).
Again we shall assume, without finding that complainant establishes
a prima facie case of retaliation. Yet, he fails in his efforts for
the same reason he cannot establish a disparate treatment claim.
The responding officials had nothing to do with the posting (or
non-posting) of the vacancy announcement. Complainant fails to prove
otherwise and show that retaliation motivated management to somehow
treat him adversely.
After a careful review of the record, the Commission finds that the
issuance of a decision without a hearing was appropriate, as no genuine
dispute of material fact exists. Construing the evidence to be most
favorable to complainant, we note that complainant failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus toward complainant's protected classes. 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
December 15, 2005
__________________
Date
1 Complainant does not contest on appeal
the AJ's handling of his disability claim.