0120142515
12-04-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01201425151
Hearing No. 430-2012-00060X
Agency No. 4H-310-0026-11
DECISION
Complainant timely filed an appeal from the Agency's 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 reasons set forth below the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency's Post Office in Brunswick, Georgia. Report of Investigation (ROI), at 7. On June 24, 2009, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination based on race (African-American) when he was given a 14-day suspension for not wearing his seatbelt. A hearing was held on October 13, 2010, and the AJ assigned to the case found that Complainant had established discrimination based on his race. Id. at 23. The Postmaster was named as one of the responsible management officials and testified at the hearing, but another employee was found to have been ultimately responsible for the discrimination.
On November 23, 2010, a month after the hearing, the Agency assigned Complainant to work Mail Route 35. Id. at 135. Upon being assigned to that route, Complainant reportedly informed management that he could not complete it in the required eight hours. Complainant worked Route 35, but, as he indicated, could not complete it in eight hours and was forced use to 1.39 hours of overtime. Complainant's first-level Supervisor (S1) subsequently issued Complainant a Letter of Warning dated December 16, 2010, noting that the overtime he used for Route 35 was unauthorized. Id. at 150. During a pre-disciplinary interview, Complainant told S1 that he was unfamiliar with the route and the mail volume that day was excessive. Id. at 131.
Later, on January 3, 2011, the Postmaster spotted Complainant's work vehicle crossing an intersection. Id. at 111. According to the Postmaster, Complainant's vehicle's door was open. The Postmaster followed Complainant's vehicle, informing him of the safety violation. Id. at 136. The Postmaster also asked Complainant whether he was carrying dog spray and said that Complainant did not properly curb the wheels of his vehicle. Id. at 137. Complainant and the Postmaster apparently got into a disagreement about the matter. Thereafter, the Postmaster issued Complainant an "Observation of Driving Practices" form. Id. at 157. Therein, the Postmaster cited Complainant for not properly signaling at an intersection and not curbing his wheels when parked. Id. The Postmaster also noted that Complainant made disparaging remarks to him when corrected. Id.
Complainant filed the instant formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII when:
1. he was issued a Letter of Warning on December 16, 2010; and
2. on January 3, 2011, the Postmaster made negative comments about his work performance.
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 March 15, 2012, the AJ issued a Notice of Intent to Issue a Decision without a Hearing. On March 22, 2012, Complainant, through his attorney, requested additional time until April 11, 2012 to file his response to the AJ's notice. Thereafter, the Agency filed its Unopposed Motion for Enlargement of Time, requesting additional time until April 11, 2012, to respond as well. On March 30, 2012, the Agency filed its response to AJ's Notice of Intent to Issue a Decision without a Hearing. Complainant filed his response on April 11, 2012. However, the AJ had already issued her decision on April 5, 2012, finding no discrimination.2
Specifically, the AJ noted, with regard to claim 1, that Complainant admitted that he did not return to the office within the required eight hours on the day in question. The AJ further noted that Letters of Warning were also issued to eight other employees for the unauthorized use of overtime during the same relevant time period, five of whom were Caucasian. The AJ found that Complainant was treated the same as other similarly-situated employees, and that he failed to provide evidence to establish discrimination. With respect to claim 2, the AJ indicated that the Postmaster did not discipline Complainant, and there was no evidence that the Postmaster's comments were motivated by Complainant's protected classes. The AJ found that Complainant failed to establish a prima facie case of discrimination, and to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, asserts that the AJ issued the decision before his additional submissions were reviewed and made part of the record. Complainant indicates that the AJ agreed to give him additional time to submit documentation through April 11, 2012, but issued the decision on April 5, 2012. Complainant further states that the Postmaster has been relieved of his duties. Complainant states that the Postmaster has no credibility because he was found to have falsely accused African-American Carriers of not wearing their seatbelts. Complainant asserts that he endured unwarranted discipline, lying, screaming, and threats from the Postmaster due to his successful EEOC hearing, wherein a previous AJ found discrimination.
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 EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, � VI.B. (Nov. 9, 1999) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint 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
AJ's issuance of a Decision without a Hearing
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).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of his claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998); see also Peavley v. U.S. Postal Serv., EEOC Request No. 059:50628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, at Ch. 7, � 1; see also 29 C.F.R.� 1614.109(e).
In the instant case, we note that the record reflects that the AJ agreed to give Complainant additional time to submit documentation through April 11, 2012. Nonetheless, the AJ issued her decision on April 5, 2012, before Complainant had the opportunity to submit his April 11, 2012, response to the AJ's Notice of Intent to Issue a Decision without a Hearing. Therefore, we conclude that Complainant was not provided with an opportunity to file a response opposing the AJ's proposal to issue a decision without a hearing. As such, we determine that the AJ erred in issuing a decision without a hearing without affording Complainant the procedural safeguards required pursuant to 29 C.F.R. � 1614.109(g)(3). We find that the AJ's error was material and prejudicial to Complainant because Complainant's April 11, 2012, response, not considered by the AJ, clearly establishes that there are material facts in dispute, and that the credibility of witnesses is at issue in this case, as explained below.
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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a prima facie case of discrimination on the basis of reprisal, a complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of his protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse action. See Whitmire v. Dep't of the Air Force. Appeal No. 01A00340 (Sep. 25, 2000).
To establish a prima facie case of discrimination on the bases of race, Complainant must show that (1) he is a member of a protected class; (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) he was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Social Sec. Admin., EEOC Appeal No. 0120093260 (Oct. 22. 2009).
Here, unlike the AJ, we find that Complainant established a prima facie case of discrimination based on reprisal with respect to both claims. There is no dispute that S1 and the Postmaster were aware of Complainant's prior EEO activity. Regarding the third prong of a prima facie case of reprisal, under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. EEOC Compliance Manual Section 8, "Retaliation" No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire, EEOC Appeal No. 01A00340. We find that the Letter of Warning and bad driving observation issued to Complainant to be actions "reasonably likely to deter protected activity." Finally, with regard to the fourth prong, we find that a nexus exists between Complainant's EEO activity and claims 1 and 2. We note that Complainant was issued the Letter of Warning and given the driving observation only a few months after an AJ held a hearing with respect to his prior EEO complaint, upon which he succeeded. Therefore, we find that Complainant has established a prima facie case of discrimination based on reprisal.
With regard to Complainant's prima facie case of discrimination with respect to race, we note that Complainant received a negative driving observation, while three Caucasian employees, observed on the same day, received positive observations. ROI, at 15. Further, Complainant asserts that letter of warnings for Caucasian employees were withdrawn, while his was not.
Once Complainant establishes a prima facie case discrimination, the Agency has the burden of production to articulate a legitimate, nondiscriminatory reason for its actions. With regard to claim 1, S1 explained that, on November 23, 2010, Complainant did not complete his route within the required eight hours of allotted time. Id. at 131. S1 explained that Complainant did not have permission to use overtime on that day. Id. With respect to claim 2, the Postmaster explained that, on January 3, 2011, when he was returning from lunch, he witnessed that Complainant's vehicle was in operation with the door open, and the seatbelt appeared to be hanging below the seat. Id. at 136. The Postmaster further explained that he did not know who was driving the vehicle, but proceeded to perform an observation of the vehicle. Id. at 137. The Postmaster acknowledged that he did ask whether Complainant was carrying dog spray and indicated that Complainant did not curb his wheels. Id. The Postmaster indicated that, although there was no curb in that area, he instructed Complainant to turn his wheels to the left to prevent an accident. Id. The Postmaster additionally stated the area is prone to stray dogs. Id.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. After a careful review of the record, we find that the AJ erred in issuing a decision without a hearing because there are genuine issues of material fact in dispute with respect to whether Complainant established pretext. We note that in his April 11, 2012, response, Complainant asserts that he was issued the Letter of Warning on December 16, 2010, for unauthorized overtime despite the fact that S1 approved the overtime. Complainant states that he told the Postmaster that he could not complete the route in the required eight hours because he was given an additional pivot and the mail was heavier than normal that day. Complainant claims that, although it is alleged that S1 issued him the Letter of Warning, it was actually issued at the direction of the Postmaster. We further note that, although the Postmaster issued Letters of Warnings to other carriers, Complainant contends that those letters were withdrawn while his was not. We also note that Complainant and a coworker, both African-American, were the only ones who received negative driving observations from the Postmaster. ROI, at 15. Three other employees, all Caucasian, were observed by the Postmaster on the very same day, but were cited as "observed all safety regulations." Id. Complainant states these three employees also had no prior EEO activity, while he and his coworker did. In summary, there are unresolved questions of material fact that should have precluded a decision without a hearing.
CONCLUSION
Based on the foregoing, we find that a decision on the merits of Complainant's complaint is improper at this juncture, because summary judgment must not be used as a trial by affidavit. The credibility of Complainant, S1, and the Postmaster must be assessed through live testimony at a hearing. We also find that the AJ improperly did not provide Complainant the opportunity to file a response. As such, we find that the AJ erred in issuing a decision without a hearing. The Commission therefore VACATES the Agency's final order and REMANDS the matter to the Agency in accordance with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the EEOC Charlotte District office. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
December 4, 2014
Date
1 This case was docketed inadvertently as a Request for Reconsideration (Request No. 0520120474). It has since been re-docketed properly as an appeal.
2 We note that the AJ wrote in her April 5, 2012, decision that she was granting the Agency's Motion for a Decision without a Hearing, when in fact she, sua sponte, issued a Notice of Intent to Issue a decision Without a Hearing on March 22, 2012. Further, the AJ wrote that Complainant had the opportunity to respond, even though he submitted his response after the decision was already issued.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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