0120131516
08-05-2013
Ralph L. Trevino, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Ralph L. Trevino,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131516
Hearing No. 471-2012-00091X
Agency No. 1J-491-0003-12
DECISION
Complainant filed an appeal from the Agency's January 30, 2013 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency's Processing and Distribution Center facility in Lansing, Michigan. He had prior EEO activity which was known by his supervisor.
On February 22, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (learning disability and facial scars) and reprisal for prior protected EEO activity when, on December 30, 2011, the Agency notified him that the Agency would not rehire Complainant.
The Agency accepted the claim for investigation.
The pertinent record developed during the investigation shows that, prior to November 13, 2010, Complainant worked as a Casual Clerk at the facility. It is undisputed that Complainant's employment terminated effective November 13, 2010. On September 7, 2011, Complainant submitted an application for reemployment. The application required that the applicants provide the full work history. The application asked, "Have you ever been fired for any reason?" Complainant answered "No". He also indicated that he was a current employee. Complainant averred that he made a mistake in filling out his application.
Agency witnesses stated that it was Agency policy and practice that the submission of any false information provides a reason for not reemploying an applicant. In addition, the record shows that Complainant was interviewed and failed to divulge or correct his prior false response.
On December 30, 2011, management mailed Complainant a letter regarding his suitability for reemployment. The determination letter referenced the fact that Complainant identified himself as a current employee. The suitability determination letter stated:
This information you provided on your September 7, 2011 PS 2591 is false. At the time you provided this information and certified its truth on September 7, 2011, you were not working for the USPS and had been terminated effective November 13, 2010.
Further, in his affidavit, Complainant affirmed that he did not believe that the alleged officials were aware of his medical condition and he was not aware of any similarly situated individuals whose were treated more favorably.
At the conclusion of the investigation, the Agency gave Complainant a copy of the report of investigation and notified him of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing.
The Agency moved for summary judgment, arguing that there was no evidence to establish a prima facie case of disability discrimination or retaliation. The Agency stated that it did not offer Complainant subsequent position because the Agency found him to be unsuitable for employment because it deemed Complainant's statements to be untruthful on his application. The Agency also asserted that Complainant did not provide evidence to show that the Agency's stated reason (false statements on application) was a pretext for discrimination or retaliation.
Complainant failed to file a response to the Agency's motion for summary judgment.
The AJ issued a decision in favor of the Agency. The AJ determined that inasmuch as the Agency articulated a legitimate reason for its actions, the analysis should go directly to addressing pretext. The AJ found that the Agency's offered reason was based on undisputed evidence that Complainant submitted an application on September 7, 2011, where he provided answers that the Agency believed were untrue because Complainant's employment had terminated effective November 13, 2010. The AJ concluded that there were no genuine issues of material fact or credibility presented and, therefore, it was appropriate to issue a decision without a hearing.
The Agency subsequently issued a final order, adopting the AJ's final decision.
This appeal followed.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Title VII at Section 717(a) requires that all employment actions be made free from discrimination, including reprisal. In a reprisal claim, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the term and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Similarly, the Commission's regulations at 29 C.F.R. � 1614.101(b) provide "No person shall be subject to retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act . . . or the Rehabilitation Act."
* Complainant must first establish his prima facie claims to shift the burden to the Agency to rebut the presumption established by the prima facie case by articulating a legitimate, nondiscriminatory reason for its actions. In this case, Complainant did not identify anyone who received better treatment than the Agency provided to him.
For purposes of our analysis, however, we will assume that Complainant established the elements of his prima facie case of reprisal and disability discrimination.
Next, we find that the Agency met its burden of production. The Agency provided a specific, clear, legitimate and individualized explanation that provided an opportunity for Complainant to satisfy his ultimate burden of proof of pretext. The Agency met its burden because the Agency articulated its reasons why it did not rehire him. The Agency's stated reasons was the Agency found Complainant to be unsuitable for rehire because the Agency believed that Complainant made untrue statements on his application and failed to correct the statements during the interview process. There is no evidence that this reason was a pretext for any discrimination or reprisal.
Reviewing the record as a whole, we find that the preponderance of the evidence supports the Agency's finding of no discrimination.
Accordingly, the Commission AFFIRMS the Agency's final decision.
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 tends 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 5, 2013
__________________
Date
2
0120131516
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120131516