0120103302
11-30-2010
Dwight T. Chatmon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dwight T. Chatmon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120103302
Hearing No. 532-2008-00179X
Agency No. 1C-441-0045-08
DECISION
Complainant filed an appeal from the Agency's July 22, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Maintenance Operations, at the Agency's Processing and Distribution Center in Cleveland, Ohio. On April 23, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
(1) On April 4, 2008, Complainant was given a Pre-disciplinary Investigation ("PDI") and, on April 23, 2008, Complainant was given a Letter of Warning ("LOW");
(2) On April 12, 2008, Complainant was made aware that he was not the successful candidate for the position of Manager Maintenance Operations (EAS-23) Tour 2 at the Cleveland Processing & Distribution Center.
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 requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's March 10, 2010, motion for a decision without a hearing. The AJ subsequently issued a decision without a hearing on July 9, 2010.
In her decision, the AJ found that the record was sufficiently developed and that the material facts were not in dispute. Specifically, with respect to claim (1), the AJ found that Complainant received a pre-disciplinary interview, followed by a Letter of Warning because Complainant posted a schedule for the week containing the New Year's Day holiday was posted by Complainant one day late, on December 26, 2007. The late posting caused the Agency to pay money to settle a grievance filed by the Union for violating the collective bargaining agreement. AJ's Decision Without a Hearing, (AJ Decision), July 9, 2010, at 4. The AJ found that Complainant did not dispute that he posted the schedule late. Complainant explained that he had been directed by S1 to make changes to the schedule and that S2 instructed Complainant to do whatever S1 had directed him to do. Id. at 5. The AJ observed that Complainant identified another supervisor, E1, who has also posted a holiday schedule incorrectly, but who was not disciplined in any way. The AJ found that E1 was a White male, but E1 was not similarly situated to Complainant. E1, the AJ found, did not cause the Union to file a grievance, nor did the Agency have to pay money to resolve a grievance because E1's schedule failed to rotate employees properly. Id. at 10. The AJ found that Complainant did not establish a prima facie case of discrimination based on his race or sex. Id.
Regarding claim (2), the AJ found that Complainant did not establish a prima facie case of discrimination on any basis when he was not selected for the position of Manager of Maintenance Operations. Specifically, the AJ noted that Complainant is a member of protected groups based on his sex (male) and race (Black). However, the selectee was also a member of both Complainant's protected groups. Id. at 10. Therefore, Complainant did not establish a prima facie case of either race or sex discrimination regarding claim (2). Id.
The AJ considered Complainant's complaint based on reprisal, noting that the selecting official, S1, was aware of Complainant's prior EEO activity. Id. at 7. However, the AJ found that members of the Review Board charged with reviewing the applications were not aware of Complainant's prior EEO activity. Id. Complainant's application was not forwarded to the selecting official because Complainant did not submit his application in the preferred format, while other candidates did. Id. at 12. Accordingly, the AJ found that Complainant's prima facie case of discrimination based on reprisal also failed. Id. at 13.
The AJ found that even if Complainant had established a prima facie case of discrimination, that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Id. at 12. In this case, Complainant posted the holiday schedule late, which violated the collective bargaining agreement and resulted in a loss to the Agency. Id. at 13. The AJ found nothing in the record to show the Agency's reasons were a pretext to mask discrimination. Id.
The AJ also found that regarding claim (2), that Complainant failed to show that his qualifications were plainly superior to those of the selectee. The AJ noted that the selectee had greater overall tenure with the agency by seven years, and that the selectee had been a supervisor for four years, while Complainant had served as a supervisor for two years.
Id. at 13. The AJ found Complainant's qualifications were, at best, equal to those of the selectee. Id.
The AJ concluded that Complainant failed to present evidence of discrimination on any basis. Id. 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.
On appeal, Complainant states that the Agency official issuing the discipline to him described in claim (1) was only acting at the direction of S1, and that S1 was motivated by reprisal because S1 was named by Complainant as the responsible management official. Complainant's Appeal Request, August 9, 2010.
ANALYSIS AND FINDINGS
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).
We concur with the AJ that the material facts are not in dispute and find that drawing every inference in Complainant's favor, that Complainant has not shown that the Agency's reasons for issuing the discipline described in claim (1) and for its selection, were not worthy of belief. We find the same reasoning applies even if S1 directed the preparation of the memorandum for discipline, rather the agency official who signed the Letter of Warning. We find the evidence supports the Agency's position that Complainant's actions caused the Agency to be subjected to a grievance that required the Agency to pay to resolve a grievance that impacted many employees. Affidavit C, June 19, 2009, Report of Investigation, (ROI) at 2; Step 2 Grievance Settlement, (signed) April 3, 2008, Union Number CL8-101. We find no evidence that employees in similar circumstances, who were not in Complainant's protected groups, were not disciplined.
We find, as did the AJ, no dispute that the selectee for the position of Manager, Maintenance Operations, described in claim (2) was in the same racial group and was also a male candidate. We further observe that Complainant's application, as described by the witnesses, does not follow the format of the applications identified by the Agency as belonging to candidates who were selected for an interview, and of the selectee. See Exhibit 5, ROI at page 15, et seq; and Exhibit 6, ROI, page 24.
We concur with the AJ that Complainant has not shown that the Agency's reasons for its action were a pretext. We find the undisputed evidence shows that Complainant was not subjected to discrimination as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's Final Action, finding no discrimination.
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
November 30, 2010
__________________
Date
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0120103302
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103302