0120103502
01-20-2011
Derek G. Chandler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Northeast Area), Agency.
Derek G. Chandler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120103502
Hearing No. 520-2010-00315X
Agency No. 4B-020-0010-10
DECISION
On August 18, 2010, Complainant filed an appeal from the Agency's January
28, 2010, 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.
ISSUES PRESENTED
The issues presented are: (1) whether the AJ appropriately issued a
decision without a hearing; and (2) whether Complainant was subjected
to discrimination on the basis of race (Black) when, on October 6, 2009,
he was placed on Emergency Placement in Off Duty Status without pay for
failing to deliver over 30 pieces of mail from October 2 through October
6, 2009.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier, Level L, at the Agency's Brighton, Massachusetts.
He was supervised by the Manager of Customer Services (Supervisor),
the responsible management official in this case.
On January 13, 2010, Complainant filed an EEO complaint in which he
alleged what has been identified above as Issue 2. The Agency accepted
this issue for investigation.1
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the Report of Investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing. The AJ assigned to the case determined
that the issues in the complaint did not warrant a hearing and over the
complainant's objections, issued a decision without a hearing on July 20,
2010.2 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 this appeal.
CONTENTIONS ON APPEAL
In a statement filed with his appeal, Complainant's attorney indicated
Complainant would submit a supporting brief. We note that no brief
was received. The Agency requests that we affirm its adoption of the
AJ's decision.
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 (MD-100), at Chapter 9, � VI.B. (November 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 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").
ANALYSIS AND FINDINGS
Summary Judgment
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 AJ 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 AJ found the following facts. On October 6, 2009, the Supervisor
examined Complainant's Undeliverable Bulk Business Mail (UBBM), and
found mail which should have been delivered because it was slated for
locations with deliverable addresses. Administrative Judge's July
20, 2010, Decision (AJ Decision), at 2. The AJ noted that after the
Supervisor reported her findings to the OIG pursuant to an agreement
into to which the Agency had entered with the Union, which "made it
a criminal act for anyone who has taken charge of any mail to quit
voluntarily or desert the mail before making proper disposition of the
mail...," she placed Complainant in off-duty status pending the outcome
of the OIG's investigation into the matter. Id. at 3. She further noted
that Complainant was not placed in off-duty until after the OIG had an
opportunity to conduct an in-person interview with Complainant. Id.
Complainant filed a grievance on the same matter with the Union,
which found that the off-duty placement issued by the Supervisor was
grounded in sufficient reason. The AJ noted this finding, and also the
picture evidence of the undelivered mail that was part of the record.
Id. at 6. After an examination of the evidence in this case, we find
proper the Agency's issuance of a summary judgment ruling. Even drawing
all possible inferences in Complainant's favor, there exists no genuine
issue of material fact nor question of credibility to be resolved.
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). He must
generally 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 Construction Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in
this case, because as the AJ found, the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997).
To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the agency's explanation is a pretext for
discrimination. 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);
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13,
1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December
14, 1995). The AJ found that Complainant did not succeed in doing so.
Specifically, the AJ found that along with the Supervisor's observation
that Complainant had left deliverable mail in his UBBM, the Agency was
able to provide pictures of the deliverable mail assigned to Complainant's
route. Adding to the AJ's findings, we note that these mailings remained
undelivered up to four days after they should have been.
The AJ further found that Complainant had no explanation as to why
some of his mail had been found in the UBBM, was unable to name others
outside of his protected group who was treated differently for the
same infraction, and did not dispute that the Agency-Union agreement
provided for off-duty placement in cases where lost or improperly disposed
mail was the result of an employee's action. See AJ Decision, at 6-7.
Additionally, the record reflects that the Supervisor had placed two
White employees in off-duty status for the very offense which landed
Complainant in non-pay status. See ROI, at 86. We agree with the AJ
that Complainant failed to prove that the Agency's stated reasons were
motivated by anything other than what the record clearly shows, that is,
his penchant for disposing of mail using methods disallowed by the Agency,
and considered a criminal act by government regulations.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the
AJ's findings of fact with respect of Complainant's disparate treatment
claim are supported by a de novo review of the record, and that her
application of the law to those facts are legally sound. There is no
reason to disturb that the AJ's decision; we hereby AFFIRM the Agency's
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 (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
January 20, 2011
Date
1 Complainant amended his complaint when he was removed from employment,
effective January 16, 2010, for failing to execute his duties in a
satisfactory manner. On March 10, 2010, the Agency dismissed this
aspect of Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(2)
after determining it was not brought to the attention of an EEO Counselor
within 45 days as required by Commission regulations.
2 The AJ affirmed the Agency's dismissal of Complainant's removal
claim. Complainant did not raise this matter on appeal. We exercise
our discretion to review only the issues specifically raised on
appeal. Therefore this decision does not concern Complainant's removal.
See Equal Employment Opportunity Commission Management Directive for 29
C.F.R. Part 1614, at 9-10 (Nov. 9, 1999).
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0120103502
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103502