0120102287-Howard
09-09-2010
Irvin Howard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Irvin Howard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120102287
Hearing No. 471-2008-00006X
Agency No. 1J-482-0004-07
DECISION
On May 10, 2010, Complainant filed an appeal from the Agency's April 8, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1 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.
ISSUE PRESENTED
The issue presented in this case is whether the Administrative Judge (AJ) correctly issued a decision without a hearing, finding that the Agency did not discriminate against Complainant when he was terminated from his position for violating a Last Chance Agreement.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's Royal Oak, Michigan Processing and Distribution Plant. On December 16, 2005, Complainant was issued a Notice of Removal for conduct unbecoming a Postal employee. Complainant was cited for sexual harassment of another employee. The Notice stated that Complainant previously had been instructed not to speak with or have any contact with the coworker. Specifically, it was reported that on June 30, 2005, a female coworker reported that Complainant had engaged in unwelcome conduct that included calling her "Babe or Buddy," discussions about her with co-workers, and touching her. The coworker reported that after she rejected Complainant's advances he became more aggressive, including intruding into her personal space and yelling at her. On November 29, 2005, the coworker reported continued problems with Complainant which included watching, staring at, and following her. Other female employees also reported that Complainant had said and done inappropriate things towards them. As such, the December 16, 2005, Notice of Removal was issued. However, on January 6, 2006, Complainant entered into a Last Chance Agreement (LCA) with the Agency in order to avoid the proposed removal. The LCA provided, in part:
3. The employee agrees to have virtually no contact with the [coworker] inside or outside of the [Agency]. This includes: a. Don't have any 3rd party conversations that address her or this incident in any way....
On July 26, 2006, a Senior Manager charged Complainant with violating the LCA. Complainant was charged with repeatedly going to the coworker's area and engaging in many third-party conversations about the coworker after signing the LCA. Specifically, it was reported that Complainant had told the other employees that, "I think she is the one for me," and "That's my girl." The Senior Manager was also told by other employees that Complainant inquired about the coworker's well-being on one occasion and indicated his desire to go out with her. Therefore, in July 2006, the Senior Manger issued a Letter of Termination to Complainant for violating the LCA.
Thereafter, on February 13, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), disability (back/knees), and in reprisal for prior EEO activity when, in July 2006, he was issued a Letter of Termination for violating the LCA.2
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 23, 2008, motion for a decision without a hearing and issued a decision without a hearing on March 29, 2010. 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.
Specifically, the AJ found that the record had been adequately developed, and there were no genuine issues of material facts involved in this matter. The AJ also indicated that he would assume for the sake of argument that Complainant was an individual with a disability and a had engaged in prior EEO activity. The AJ determined that Complainant failed to establish a prima facie case of discrimination because he failed to establish that any other employee who violated a Last Chance Agreement was treated more favorably. The AJ indicated that Complainant had failed to identify any employee who was placed on an LCA, accused of violating the LCA, and not removed from his or her position. The AJ also found that Complainant had not come forward with any other probative evidence that raised an inference of discrimination. Notwithstanding, the AJ held that even assuming for the sake of argument that Complainant established a prima facie case of discrimination as to all bases, the Agency had articulated legitimate nondiscriminatory reasons for its actions; namely, that Complainant was removed because he violated the LCA by repeating his previous conduct of sexually harassing his coworker. The AJ noted that while Complainant raised several arguments in an attempt to show pretext,3 he failed to produce any evidence which disputes that he violated the LCA. The AJ found that Complainant failed to show that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that a decision without a hearing should not have been issued in this case because there are genuine issues of material facts which need to be resolved. Complainant maintains that he has a long history of illnesses and injuries, and that this is the real reason why he was terminated. Complainant contends that the claims of a "highly emotional female coworker" were used as a tool to remove him from his position. Complainant indicates that he was terminated from his position because of the National Reassessment Program (NRP), whose purpose was to terminate disabled workers. The Commission notes that Complainant's brief on appeal includes the same issues that were previously addressed by the AJ. In summary, Complainant maintains that the LCA was too vague to be enforced. He maintains that he was given assignments that were in the vicinity of Complainant's work area, and that the way the LCA was written it did not allow him to be civil to the coworker without violating the LCA. Complainant contends that he was set up to fail. Complainant maintains that he has been subjected to harassment and indicates that the Senior Manager involved in this case has been named in other EEO complaints, and maintains that termination based on the violation of the LCA was the Senior Manager's way to get rid of him without citing the NRP.
In response, the Agency asserts that Complainant has failed to show that its articulated legitimate, reasons for terminating him were pretext for discrimination.
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 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. 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). In the instant case, we find it was appropriate for the AJ to have issued a decision without a hearing on this record because there are no material facts in dispute in this case, nor credibility determinations to be resolved.
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts back to the complainant to demonstrate by a preponderance of the evidence that the agency's reason(s) for its action was a pretext for discrimination. At all times, complainant retains the burden of persuasion, and it is his/her obligation to show by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Following the three-part scheme of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), for analysis of claims claiming disparate treatment based on reprisal, complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, supra, to establish a prima facie case of reprisal, s/he must show: (1) s/he engaged in a prior protected activity; (2) the official acting on behalf of the agency was aware of the protected activity; (3) s/he was subjected to adverse treatment by the agency; and (4) a nexus, or causal connection, exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
According to the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless an agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o) and (p); see Appendix.
Upon review, the Commission finds that Complainant has failed to prove his case. Specifically, we find that even if we assume for the sake of argument that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, that Complainant was terminated from his position after violating a LCA. We find the record supports the finding that Complainant continued to harass this coworker, and that it was because of this violation of the LCA that he was terminated from his position.
Further, we with respect to Complainant's contentions on appeal, we find that they were addressed by the AJ in the underlying decision. We find that Complainant has not provided any evidence other than his conclosury statements to demonstrate that discriminatory animus was a factor in this decision. The record shows that Complainant was accused of sexual harassment by several female employees, with a focus on one coworker in particular, he was issued a Notice of Removal as a result of his actions, he was offered a LCA in order to prevent his termination, he agreed to the terms of the LCA, he violated the terms of the LCA and was thereafter issued a Notice of Termination. We find that Complainant has not presented any evidence which remotely suggests that discrimination was involved in the decision to terminate him. Accordingly, we find that Complainant has failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
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 correctly issued a decision without a hearing finding no discrimination. We find that Complainant failed to show that discriminatory animus was involved in the decision to terminate him. Accordingly, we 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 (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
September 9, 2010
Date
1 Complainant withdrew his claim of age discrimination.
2 Initially, the Agency dismissed the Complainant in its entirety on March 2, 2007, on the grounds of untimely EEO Counselor contact. The Commission reversed the Agency's dismissal and remanded the complaint for investigation. Irvin Howard v. U.S. Postal Service, EEOC Appeal No. 0120071977 (June 14, 2007).
3 To show pretext, Complainant alleged the following: that the Agency had a national policy which targeted disabled employees for removal; the facts that lead to the LCA did not warrant such a harsh penalty, because a "highly emotional female coworker" was involved in this matter and her conduct caused much of the problem here; his former supervisor retaliated against him for requesting an accommodation; his supervisor used the coworker as a pawn to get at Complainant; the Agency subjected him to a hostile work environment; Complainant's supervisor, by proxy, sexually harassed Complainant; the LCA document was designed to fail, was not clear, was designed to terminate him, and was too vague; and finally, that he did not engage in the conduct that lead to his termination. The AJ addressed each of these arguments and found them to be without merit, and not germane to whether Complainant violated the LCA.
??
??
??
??
2
0120102287
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102287