0120100092
08-04-2011
Joyce Ann Nixon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Joyce Ann Nixon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120100092
Hearing No. 532200900089x
Agency No. 4C430000309
DECISION
On September 28, 2009, Complainant filed an appeal from the Agency’s
August 28, 2009, final order concerning her 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. 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
Was Complainant discriminated against when on or about October 7, 2008,
she as accused of falsifying her time, sent home on October 8, 2008 and
subsequently issued a Notice of Removal dated November 4, 2008.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a letter carrier at the Agency’s West Union Post Office facility
in West Union, Ohio.
On December 15, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (Caucasian),
national origin (Caucasian), sex (female), religion (Baptist), disability
(back, cancer), age (54), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when she was accused
of falsifying her time, sent home on October 8, 2008, and subsequently
issued a Notice of Removal dated November 4, 2008.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her 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 June 19, 2009, motion for
a decision without a hearing and issued a decision without a hearing on
August 19, 2009. The Agency subsequently issued a final order adopting
the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submits no new arguments 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 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). After a careful review of the record,
the Commission finds that a decision without a hearing was appropriate,
as no genuine issue of material fact exists.
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 Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley
v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Here, we concur with the AJ’s finding that assuming arguendo,
Complainant established a prima facie case of discrimination as alleged.
The Agency nonetheless, articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the record indicates that
Complainant was observed on October 7, 2008 entering the post office
at 5:00 p.m. and leaving the post office at 5:10 p.m., but indicating
on her rural carrier trip report (Form 4240) that she returned to the
post office at 4:45p.m and left at 5:00p.m. The record further reflects
that also on October 7, 2008 Complainant’s supervisor, the Officer in
Charge (OIC) received a call from a customer on Complainant’s route
complaining about not receiving mail for the day. The OIC then checked
Complainant’s Form 4240 to verify that she had signed out for the day.
The OIC further indicates that he then went out to Complainant’s route
and found several mailboxes with the flags up indicating that no mail
had been picked up that day. He then observed Complainant attempting to
complete her route and told her to return to the post office.
As a result of Complainant’s falsification of her rural carrier trip
report and for her failure to perform her job in a satisfactory manner,
the Agency issued Complainant a Notice of Removal dated November 4, 2008.
The record further indicates that previously, Complainant was sent to
Rural Carrier Academy to retrain in an attempt to allow her to correct
issues she had in completing her route in a timely manner. The Agency
indicates that Complainant showed no improvement upon her return from the
Carrier Academy. We find that Complainant failed to proffer any evidence
form which a reasonable fact-finder could conclude that the Agency’s
actions were motivated by discriminatory or retaliatory animus toward
Complainant’s protected classes. Moreover, Complainant has failed
to demonstrate that the Agency’s articulated reasons for its action
were pretextual.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
viewing the record evidence in a light most favorable to Complainant,
there are no genuine issues of material fact. We further find that
the AJ appropriately issued a decision without a hearing finding no
discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is affirmed.
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
August 4, 2011
__________________
Date
2
0120100092
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100092