Complainantv.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionJul 18, 2014
0120123324 (E.E.O.C. Jul. 18, 2014)

0120123324

07-18-2014

Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.


Complainant

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Eastern Area),

Agency.

Appeal No. 0120123324

Hearing No. 530-2012-00084X

Agency No. 4C-150-0077-11

DECISION

On August 17, 2012, Complainant filed an appeal from the Agency's July 20, 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., 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 before the Commission are (1) whether an EEOC Administrative Judge properly issued a decision without a hearing in this case; and (2) whether Complainant proved discrimination on the bases of race (African American), sex (male), and age (over 40) when his request to be reassigned to the Cleveland Processing and Distribution Center (Cleveland P&DC) was denied on June 29, 2011.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodian at the Agency's Pittsburgh Network Distribution Center in Warrendale, Pennsylvania. On October 26, 2011, he filed a formal complaint of discrimination in which he alleged discrimination as set forth in the statement "Issues Presented," above.1 The Agency accepted this issue for investigation and, at the conclusion thereof, provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ, or alternatively, a final agency decision based on the record. Complainant timely requested a hearing. Thereafter, his case was forwarded to the appropriate EEOC District Office and assigned to an AJ.

Following a summary judgment motion filed by the Agency, the AJ issued a decision without a hearing, dated July 9, 2012, in which she found that Complainant failed to prove discrimination as alleged. In so doing, the AJ noted that, because Complainant failed to challenge the Agency's partial dismissal, that issue was deemed waived and therefore not addressed in her decision.2 On July 20, 20, 2012, the Agency issued a final order in which it adopted in full the AJ's findings. Complainant thereafter filed this appeal. Neither party submitted a statement in support of, or opposition to, the 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 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 or reject both 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

1. 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). 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).

Upon review, we find that the record is adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Thus, we have no reason to disturb the AJ's determination to issue a decision without a hearing.

2. Race, Sex, and Age Discrimination

Complainant alleged discrimination based on his race, sex, and age when the Agency denied his request to be reassigned to the Cleveland P&DC. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant 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. McDonnell Douglas, 411 U.S. at 802. Second, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, that Complainant has established prima facie cases of race, sex, and age discrimination.

We now turn our attention to whether the Agency articulated a legitimate, nondiscriminatory reason for not reassigning Complainant to the Cleveland P&DC. See Burdine, 450 U.S. at 253. The Agency stated that Complainant was not reassigned from Pittsburgh to Cleveland because the non-FMLA-related unscheduled leave he used during fiscal years 2010 and 2011 reflected a pattern in which the absences were in conjunction with an already-scheduled off day. We find the Agency's stated reason for its action to be legitimate and nondiscriminatory.

In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus because of his race, sex, and age. Here, Complainant's burden is unmet. He failed to put forth any evidence whatsoever tending to show that the Agency's reason for denying his reassignment request was based on criteria not permissible under Title VII or the ADEA. Thus, his discrimination claim is not established.

CONCLUSION

Based on a thorough review of the record, including information and evidence not specifically addressed herein, we find that the AJ's decision is supported by a de novo review of the record. We therefore AFFIRM the Agency's final order adopting the AJ's decision.

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

July 18, 2014

Date

1 Complainant also alleged discrimination when employees with less seniority were not excessed out of the Cleveland P&DC. The Agency dismissed this portion of Complainant's claim for untimely EEO counselor.

2 Likewise Complainant also does not challenge the Agency's partial dismissal on appeal. Therefore, that claim is not addressed in this decision, as the Commission exercises its discretion to review only those matters specifically raised on appeal. EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, at � IV.A (Nov. 9, 1999) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").

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0120123324

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120123324