0120062838
09-07-2007
Lawrence Pace, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lawrence Pace,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200628381
Hearing No. 230-2005-00140X
Agency No. 4J-481-0041-04
DECISION
Complainant filed an appeal from the agency's March 8, 2006 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 the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 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 Laborer Custodian at the agency's Mt. Elliot facility in Detroit,
Michigan. On December 8, 2003, complainant requested annual leave
from December 24, 2003 through January 6, 2004. His request for leave
was denied by the agency. On April 8, 2004, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of race
(African-American), sex (male), and age (49) when:
On December 8, 2003, complainant was denied annual leave.
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 complainant's objections, the AJ assigned to
the case granted the agency's August 2, 2005 motion for a decision without
a hearing and issued a decision without a hearing on February 22, 2006.
The agency subsequently issued a final order on March 8, 2006, adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
In her decision, the AJ notes that the affidavits of agency officials
currently responsible for leave approval indicate that the memorandum of
understanding between the labor organization representing bargaining unit
employees at complainant's duty station (American Postal Workers Union
(APWU)) specifically excludes December as a month during which employees
may schedule their vacation time. The AJ noted that the record reflected
complainant's subsequent request for leave during the holiday season and
that complainant was approved for five hours' leave over December 24,
25 and 26, 2003. The AJ noted that complainant failed to identify any
employees whose vacation leave was approved who were similarly situated to
complainant. The AJ further observed that complainant failed to present
any evidence that the agency's articulated reasons for its actions were
a pretext for discrimination on any basis. The AJ concluded that no
material facts remained in dispute, that complainant did not establish
a prima facie case of race, sex or age discrimination and accordingly,
found that summary judgment was appropriate. The AJ found that the
agency did not discriminate against complainant as alleged.
The agency's final decision fully implemented the AJ's decision.
On appeal, complainant identifies another employee, also in a Laborer
Custodian position, who he claims was granted three weeks of leave
during December. Complainant also submits a statement from a female
employee who states that her request for leave in December was granted,
after which, complainant submitted another request, which request was
also granted. Complainant states that in other years before and after
2003, his December leave requests have been approved.
On appeal, the agency argues that the negotiated union agreement specifies
that the vacation calendar begins the first full week in January and ends
before December 1 of each year and that the agency was in compliance with
the agreement to deny complainant's request for vacation time in December.
The agency requests that the Commission affirm its final decision.
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. 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).
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 or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
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,
411 U.S. at 804 n. 14. 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). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find no reason to disturb the AJ's decision.
We find the parties do not dispute the material facts. Namely,
complainant's request was denied, the union agreement specifically
excludes the granting of vacation time during December, but permits
granting annual leave other than advance scheduled vacation time, during
the holiday season as the workload allows. We find that complainant
did not present adequate evidence to support his claim that similarly
situated employees, not in his protected classes, made similar advance
requests for vacation time in December which leave requests were granted.
We find no conflict between the statement of the female employee (whose
leave request was granted) and the agency's position that December
vacation requests cannot be approved. Rather, we find the AJ properly
concluded that complainant's unsupported statements (regarding leave he
used in December in previous years) alone were not enough to defeat the
agency's motion for a decision without a hearing. More importantly,
we find, drawing every reasonable inference in complainant's favor,
that complainant failed to show that the agency's decision to deny his
initial leave request was motivated by consideration of complainant's
race, sex or age. We find the AJ properly issued her decision without
a hearing and that her conclusion that no discrimination occurred is
supported by the record.
We therefore AFFIRM the agency's final decision, finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 7, 2007
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above referenced appeal number.
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0120062838
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062838