0120111491
09-18-2012
Fred Hurtado, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Fred Hurtado,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120111491
Hearing No. 550-2010-00399X
Agency No. 1F941002810
DECISION
On January 11, 2011, Complainant filed an appeal from the Agency's December 6, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it 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 EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that he was subjected to race, disability, and reprisal based discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Equipment Operator at the Agency's San Francisco Processing and Distribution Center facility in San Francisco, California. On April 20, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Mexican-American), disability (back and foot), and reprisal for prior protected EEO activity when:
1. on December 16 and 17, 2009, he was charged with being Absent Without Leave (AWOL); and
2. on April 26, 2010, he received a Notice of Removal.
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. The AJ assigned to the case determined that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on December 3, 2010.
The AJ found the following: On December 15, 2009, Complainant was involved in a workplace accident. Feeling "hot, dizzy [and] deep in pain," Complainant left work before the end of his tour, allegedly telling Supervisor of Distribution Operations (SDO) that he had filled out a request for advance sick leave, that he would not be coming in the next day and that "I was using my 24 hours." In his affidavit, Complainant acknowledges that the SDO told him to "call in" if he was not coming to work. Complainant believed that "if you were not on restricted sick leave, you could use your leave when you needed it for up to 24 hours . . ., without any type of problem." SDO provided affidavit testimony that, on December 15, 2009, after Complainant told him that he was not certain if he would be in to work the following day, he told the Complainant to call in if he could not come in. When he did not call in or show up for work the following two days or provide medical documentation upon his return to work, SDO charged Complainant with AWOL for the days he was absent.
On April 26, 2010, Complainant was given a Letter of Removal on the basis of (l) unacceptable conduct/threatening and violent behavior, and (2) failure to follow instructions. The removal letter was the result of an altercation that took place on March 19, 2010, between Complainant and a co-worker (CW1). During the altercation, Complainant sprayed CW1 in the face with pepper spray. Although the Complainant and CW1 give varying accounts of the incident, it appears that CW1 was sprayed when attempting to move Complainant's forklift from a door way into the battery room, which it was blocking. When Complainant was interviewed by the postal inspectors, he acknowledged that he could have backed away from the forklift as it was moving, taking himself out of harm's way. Because he and CW1 had a "history" between them, Complainant stated that he chose not to back away but instead sprayed CW1 in the face with pepper spray. This "history" includes an incident in November, 2009 where CW1 and Complainant had a verbal altercation where CW1 threatened Complainant that he "wasn't going to take this stuff anymore" and Complainant responded that he would "knock [CW1] out." In January, 2010, Complainant and CW1 were given Notices of Seven-Day, No Time Off Suspensions for their altercation in November, 2009. Their Seven-Day Notices included a warning that "[f]uture deficiencies will result in more severe disciplinary action . . . (which) may include . . . removal from the [Agency]."
When Complainant was put on emergency off-duty status on March 19 after spraying CW1 in the face with pepper spray, Complainant was told to report to the Tour office on March 23, 2010 for an investigative interview. On March 23, 2010, Complainant was advised in writing by the Distribution Operations Manager (DMO) that he was not to report back to work until given further notice. On April 7, 2010, SDO attempted to have a "day in court" for Complainant concerning the March 19 incident After a contentious meeting, SDO told Complainant that he should wait in the cafeteria, but when SDO looked for him there a few minutes later Complainant not there. Complainant testified that he believed he was to leave the building. On April 26, 2010, Complainant was found to have failed to follow instructions given to him during his "day in court" on April 7, 2010.
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the AJ found that Complainant failed to provide a rebuttal of the Agency's proffered reasons other than to state that these are not the "true facts" and that "additional facts" can be given by Complainant. However, the AJ found that Complainant failed to provide any "additional" or "true" facts sufficient to cast doubt on the Agency's non-discriminatory reasons for placing him on AWOL after he failed to report to work or call in as he was instructed to do.
With regard to claim 2, the AJ found that Complainant merely argued that the AJ's analysis of the facts did not include facts favorable to him. The AJ found, however, that Complainant failed to provide material facts that suggested that the Agency's reasons for issuing the Letter of Removal was a pretext for discrimination.
Therefore, the AJ determined that Complainant failed to show that genuine issue of material fact existed such that a hearing was warranted in this case. Further, the AJ found that Complainant failed to demonstrate by a preponderance of the evidence that the Agency's discriminated against him as alleged.
The Agency subsequently issued a final order adopting the AJ's determination that Complainant failed to prove that the Agency subjected him to discrimination.
CONTENTIONS ON APPEAL
Complainant submitted his appeal brief postmarked February 16, 2011. In its brief in opposition, the Agency argues that Complainant's appeal brief is untimely. Complainant filed his appeal on January 11, 2011. Any statement or brief in support of an appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. 29 C.F.R. � 1614.403(d). Because Complainant did not request an extension or provide any justification for extending the briefing period in accordance with 29 C.F.R. � 1614.604(c), we find that Complainant filed his brief beyond the required 30-day time period. Consequently, we decline to address his contentions on appeal.
ANALYSIS AND FINDINGS
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 Chapter 9, � VI.B. (November 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 (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").
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).
We find that after a careful review of the record, the AJ appropriately issued a decision without a hearing. We find that record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding.
Turning to Complainant's allegations, we note that we note that 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, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming arguendo that with regard to claims 1 and 2, Complainant established a prima facie case of disability and race discrimination and retaliation, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to claim 1, Complainant was placed on AWOL when he did not call in or return to work with medical documentation to support his absence. With regard to claim 2, the Agency provided that the Removal Letter was due to his participation in April 26, 2010 altercation and subsequent failure to follow instructions.
Because we find that the Agency proffered nondiscriminatory reasons for its actions, we now turn to Complainant's burden to prove that the given reasons are not worthy of credence. We find that he failed to do so. There is nothing in the record to that demonstrates that the Agency was motivated by discriminatory animus when it took the actions in claims 1 and 2. We note that, in addressing an Administrative Judge's issuance of a decision without a hearing, a complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision without a hearing finding that Complainant failed to establish he was discriminated against as alleged.
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__9/18/12________________
Date
2
0120111491
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111491