0120093723
08-12-2011
Arturo G. Ramirez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Arturo G. Ramirez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120093723
Hearing No. 460-2008-00177X
Agency No. 4G-770-0084-08
DECISION
On September 3, 2009, Complainant filed an appeal from the Agency’s
August 13, 2009, 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.
ISSUE PRESENTED
The issue presented is whether the Administrate Judge properly issued
a decision without a hearing in which she found Complainant had not
established that he had been discriminated against based on his race,
sex, or in reprisal for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Letter Carrier, PS-01, at the Agency’s Park Place Station in Houston,
Texas. On March 18, 2008, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of race/national
origin1 (Hispanic), sex (male), and in reprisal for prior protected EEO
activity under an EEO statute that was unspecified in the record when:
1. on December 7, 2007, Complainant was not allowed to double case
a route;
2. on March 10, 2008, Complainant was issued a Letter of Warning
(LOW);
3. on March 11, 2008, Complainant was issued a 7-day suspension; and
4. on December 7, 2007, the supervisor refused to sign a routing slip
for Complainant to file a grievance.
On April 22, 2008, the Agency issued a Letter of Partial Acceptance
and Partial Dismissal, in which it accepted issues 1, 2, and 3 for
investigation and dismissed issue 4 for failure to state a claim, citing
29 C.F.R. 29 § 1614.107(a)(1).2 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.
On October 27, 2008, the Agency submitted a Motion for a Decision without
a Hearing. Complainant did not submit any objection to the Agency’s
Motion or respond to it in any way. The AJ issued a decision without
a hearing on August 6, 2009.
The AJ found that a decision without a hearing was appropriate because
the investigative record was adequately developed; there were no
genuine issues of material facts in dispute; and no additional facts
were necessary in order to render summary judgment. The AJ also noted
that Complainant and Complainant’s representative were served with
the Agency’s Motion, Complainant had the opportunity to respond to
the Agency’s Motion, but did not, and Complainant had the chance to
supplement the record with additional evidence.
Among the undisputed facts the AJ found the following: During all relevant
times, Complainant’s immediate supervisor was SUP1 (African-American,
male). Complainant’s prior EEO activity occurred on May 29, 2003.
SUP1 was aware of Complainant’s race and sex, but was not aware of his
prior EEO activity. On December 7, 2007, Complainant was not allowed
to double case a route because he did not know the route. On March 10,
2008, Complainant was issued a Letter of Warning (LOW) for failure to
follow instructions. On March 11, 2008, Complainant was issued a 7-day
suspension for failure to follow instructions and unauthorized overtime.
On June 2, 2008, the LOW was rescinded and removed from Complainant’s
record. On June 19, 2008, the 7-day suspension was reduced to an
official discussion.
Complainant identified numerous comparators: CW1 (African American,
male); CW2 (African American, female), CW3 (African American, male),
CW4 (Hispanic, female), CW5 (African American, male), CW6 (Caucasian,
female), CW7 (African American, female), CW8 (African American, female),
and CW9 (African American, female); their EEO activity status unknown.
CW1 was allowed to double case a route because he indicated that he was
familiar with the route. SUP1 did not supervise CW2 and CW4. CW3, CW5,
CW6, CW7, CW8, and CW9 did not fail to follow SUP1’s instructions or
earn unauthorized overtime. On December 7, 2007, CW10 (Hispanic, male)
was allowed to double case a route because he told SUP1 he was familiar
with the route.
The AJ concluded that even assuming Complainant had established his prima
facie cases of discrimination, the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Complainant was not permitted
to double case a route because he was not familiar with it, and that lack
of familiarity would have led to the need for additional delivery time
and therefore, excessive overtime usage. Despite the denial, Complainant
attempted on two other occasions to earn unauthorized overtime, which
resulted in the issuance of discipline. The AJ concluded that Complainant
had not established that he had been discriminated against.
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. Complainant thereafter filed the
instant appeal.
CONTENTIONS ON APPEAL
Despite a stated intention to do so, Complainant did not submit an
argument in support of his appeal. The Agency put forth its brief in
opposition to Complainant’s appeal, in which it argued that the AJ’s
decision was correctly decided and that the Agency’s final order should
be affirmed on appeal.
STANDARD OF REVIEW
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 Chap. 9, § VI.B. (Nov. 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 Chap. 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”).
ANALYSIS AND FINDINGS
Decision without a hearing
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);
Murphy v. Dep’t of the Army, EEOC Appeal No. 01A04099 (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).
In the instant case we find that the AJ’s decision to issue a decision
without a hearing was appropriate. The AJ viewed the evidence in the
light most favorable to Complainant when considering Complainant’s
allegations, and there were no material facts in dispute such that
a hearing to take testimony and make credibility determinations was
necessary.
Disparate treatment
To prevail in a disparate treatment claim such as this, 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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that he was
discriminated against as alleged. Assuming that Complainant had
established his prima facie cases of national origin, sex, and reprisal
discrimination, we find that the Agency has put forth legitimate,
nondiscriminatory reasons for its actions. SUP1 testified that on
December 7, 2007, he was looking for a carrier who could double case two
routes and asked Complainant if he was familiar with those two routes.
When Complainant indicated that he was not familiar with the routes,
SUP1 stated that he decided to continue down the overtime desired
list until he could find a carrier who was familiar with the routes.
SUP1 stated that he bypassed Complainant because it would not have
been efficient to have Complainant case the two routes, and excessive
overtime would have been generated. Complainant was issued a Letter of
Warning for failure to follow instructions on February 6, 2008. The LOW
specified that, despite repeated instructions from SUP1 to report back
to his case, Complainant refused to do so because he believed he should
have been on union time. The record shows that SUP1 issued Complainant
a 7-day suspension for failure to follow instructions on February 22,
2008, and the use of unauthorized overtime. Complainant was assigned
to deliver a particular route and requested three hours of overtime
in order to complete the deliveries. He was authorized for one hour
and 30 minutes of overtime, but then proceeded to use two hours and 48
minutes of overtime. Complainant also failed to call in to the station
to inform his managers that he would not be able to complete his route,
even with the additional approved overtime.
Complainant has not established that any of the Agency’s reasons were
pretext for discrimination. He raised no such argument to the AJ, and
has not presented any argument to the Commission on appeal. Accordingly,
we find that Complainant has not established that he was subjected to
unlawful discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions of the
Agency on appeal, including those not specifically addressed herein, we
AFFIRM the agency’s final order, which implemented the AJ’s finding
that Complainant was not discriminated against as alleged.
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 (Nov. 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
August 12, 2011
Date
1 We note that the Commission considers the term “Hispanic” to denote
a national origin rather than a race.
2 At no point in the processing of this complaint has Complainant
contested the dismissal of issue 4. Therefore, we need exercise our
discretion to not address this matter on appeal.
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0120093723
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093723