0120071828
04-15-2009
Gilbert P. Ortiz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gilbert P. Ortiz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071828
Hearing No. 440200600159X
Agency No. 1J602004505
DECISION
On March 2, 2007, complainant filed an appeal from the agency's February
8, 2007 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At all times relevant to this complaint, complainant has worked as an
Electronic Technician at the agency's Palatine, Illinois Processing and
Distribution Center.
On May 11, 2005, complainant was assigned to the Automatic Facer Canceller
System (AFCS) machines in an area supervised by an Acting Supervisor
(S1). S1 did not have supervisory authority over complainant. After an
equipment malfunction, S1 was unable to reach the maintenance technicians
to fix the equipment problems. S1 allegedly confronted complainant
and was yelling and screaming, slammed a telephone numerous times,
and shortly after threw complainant's chair.
Further, on June 8, 2005, S1 allegedly passed through complainant's
section and staring at him and acted like he was going to hit complainant.
Complainant believed that S1 was trying to intimidate him.
On September 19, 2005, complainant filed a formal complaint of
discrimination alleging harassment on the basis of race (Asian-Pacific
Islander) when:
1. On May 11, 2005, S1 created a hostile work environment when he started
yelling, screaming, and swearing at him in reference to the AFCS #3
machine, and he allegedly also slammed the phone down several times and
threw his chair across the room;
2. On June 8, 2005, S1 attempted to intimidate him by staring at him
and acting like he was going to hit him; and
3. By not removing S1 from his supervisory duties, the Manager of
Distribution Operations has allowed employees to be exposed to an unsafe
work environment and to a hostile environment.
At the conclusion of the investigation, complainant was provided 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. Over the complainant's objections, the AJ assigned
to the case granted the agency's October 17, 2006 motion for a decision
without a hearing and issued a decision without a hearing on February
2, 2007. The AJ found that complainant failed to offer any evidence that
would establish that S1's actions were motivated by complainant's race.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. Complainant now appeals to the Commission.
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 EEOC Management Directive 110, 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").
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. Department of Defense, 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).
After a careful review of the record we find that the AJ's issuance
of a decision without a hearing was appropriate. The record has been
adequately developed, complainant was given notice of the agency's motion
to issue a decision without a hearing, he was given an opportunity
to respond to the motion, he was given a comprehensive statement of
undisputed facts, and he had the opportunity to engage in discovery.
Further, even if we assume all facts in favor of complainant, a reasonable
fact finder could not find in complainant's favor, as explained below.
Therefore, no genuine issues of material fact exist.
A hostile work environment claim is comprised of a series of separate acts
that collectively constitute one unlawful employment practice. National
Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117
(2002). Unlike a claim which is based on discrete acts of discrimination,
a hostile work environment claim is based upon the cumulative effect of
individual acts that may not themselves be actionable. Id. at 115.
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of race, color, religion, sex, national origin,
or retaliation. See McCleod v. Social Security Administration, EEOC Appeal
No. 01963810 (August 5, 1999). To demonstrate a prima facie case of a
hostile working environment complainant must show: (1) that he belongs to
a protected group; (2) that he was subjected to unwelcome harassment; (3)
that the harassment complained of was based on his protected status; (4)
that the harassment affected a term, condition or privilege of employment;
and, (5) that the agency knew or should have known of the harassment.
McCleod, EEOC Appeal No. 01963810, citing Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the harassment is only actionable
if it is sufficiently severe or pervasive to alter the conditions of the
complainant's employment. Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993), reaffirming Meritor Savings Bank v. Vinson, 477 U.S. 57, 67
(1986). The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive" and the complainant subjectively perceives it as
such. See Harris, 510 U.S. at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint challenges an agency action or inaction
regarding a specific term, condition or privilege of employment, a claim
of harassment is actionable only if, allegedly, the harassment to which
the complainant has been subjected was sufficiently severe or pervasive
to alter the conditions of the complainant's employment.
Here, complainant failed to establish a prima facie case of harassment.
While complainant has established that S1 acted unprofessionally and
exhibited poor managerial skills, complainant failed to offer any evidence
that would establish that S1's actions were based on complainant's race.
Instead, the record establishes that S1's behavior was more likely than
not an inappropriate response to his frustration with the equipment's
mechanical malfunction. Besides complainant's bare assertions, the
record is devoid of evidence that would establish that S1's actions were
motivated by complainant's race. Further, S1's outburst and subsequent
staring is neither severe nor pervasive enough to establish harassment.
Finally, there is nothing in the record that would suggest that the
Manager of Distribution Operations' actions and/or inactions regarding
S1's behavior were racially motivated. Therefore, we AFFIRM the agency's
final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
April 15, 2009
Date
2
0120071828
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120071828