0120091635
08-25-2009
Levi Adelan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Levi Adelan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091635
Hearing No. 480-2008-00280X
Agency No. 4F-926-0262-07
DECISION
On February 26, 2009, complainant filed an appeal from the agency's
January 28, 2009 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. 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
During the relevant time, complainant worked as a Carrier Technician
at the Orange Post Office in Orange, California. Believing that he
was subjected to discriminatory harassment, complainant contacted an
EEO Counselor. Informal efforts to resolve complainant's concerns were
unsuccessful. Consequently, complainant filed a formal complaint based
on race, color, national origin, age, and reprisal. The agency framed
the events comprising the harassment complaint as follows:1
(1) On July 9, 2007, the Postmaster discussed allegedly confidential
information with compliant on the workroom floor;
(2) On July 13, 2007, complainant was given an investigative interview
"regarding a matter that had already been discussed with his supervisor";
(3) On July 16, 2007, complainant was issued a Letter of Warning (LOW)
for not delivering mail after the expiration of a vacation hold;
(4) Complainant became aware that another carrier engaged in similar
conduct but was not issued a LOW;
(5) On July 24, 2007, complainant was treated unprofessionally by a
supervisor;
(6) On July 25, 2007, complainant was not given adequate assistance to
finish his route in the assigned time; and,
(7) On July 26, 2007, complainant was given a second investigative
interview regarding bringing back mail and using overtime on July 25,
2007.
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 November 20, 2008 motion for a decision
without a hearing. On January 22, 2009 she issued a decision without
a hearing finding no discrimination.
In her decision, the AJ accepted as accurate much of the agency's
"Statement of Material Facts", as set forth in its motion. Regarding
facts which complainant did dispute, the AJ reasoned that the
matters were not material. For example, the parties disputed whether
complainant was ordered to return the Pennysavers on July 25, 2008,
but the AJ reasoned that since there was no evidence of any discipline
it was immaterial. According to the AJ, "[c]omplainant essentially
argued contract violations rather than discrimination." Therefore, she
concluded that complainant failed to provide evidence of discrimination
on any basis for any of the issues.
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 filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant submits no 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 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.
The Commission finds that the AJ properly granted the agency's motion
for a decision without a hearing. The record indicates that there are
no genuine issues of material fact.
Complainant alleges that he was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) s/he is a member of a
statutorily protected class; (2) s/he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Based on a review of the instant record, we agree that complainant has not
presented a prima facie case of discriminatory harassment. As described
above, complainant contends he was harassed with the Postmaster responded
to his inquiry, regarding a transfer, on the workroom floor instead of
his office; when he was given two investigative interviews; and issued
a LOW. We do not find that these incidents created an intimidating or
hostile work environment.
Moreover, complainant has failed to establish any nexus between his
protected bases and the agency's actions. There is no evidence that
management's actions were motivated by discriminatory animus towards
complainant's race, color, national origin, age or prior EEO activity.
CONCLUSION
Accordingly, the agency's decision finding no discrimination was proper
and is hereby AFFIRMED.
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
August 25, 2009
__________________
Date
1 In his opposition to the agency's Motion for a Decision Without
a Hearing, complainant also referred to the "denial of reasonable
accommodations for well documented work-related injuries." The AJ
ordered the agency to respond to the newly raised issue. According to
the agency, complainant did not have an open claim for an on-the-job
injury and therefore was not entitled to a "limited duty" position.
Complainant requested and was offered a Light Duty job, but according
to the agency, complainant chose to take retire rather than accept the
position. The matter was not one of the claims accepted and investigated,
nor does complainant raise the issue on appeal. Consequently, the
Commission shall not address the issue in this appeal.
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0120091635
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091635