0120070619
08-06-2008
Reynaldo Villanueva, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Reynaldo Villanueva,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070619
Hearing No. 460-2006-00075X
Agency No. 4G770003206
DECISION
On November 10, 2006, complainant filed an appeal from the agency's
November 1, 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. 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
At the time of events giving rise to this complaint, complainant worked as
a letter carrier at the agency's Park Place facility in Houston, Texas.
On February 7, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of his national origin (Hispanic),
age (49 at the relevant time), and reprisal for prior protected EEO
activity when:
1. on October 26, 2005, he requested three hours of overtime but
management only approved one hour and forty-five minutes;
2. on October 27, 2005, management conducted a pre-disciplinary
interview which resulted in complainant being issued a Letter of Warning
(LOW); and
3. on December 6, 2005, management conducted a pre-disciplinary
interview which resulted in complainant being issued a seven-day
suspension.
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. The AJ assigned to the case issued a decision
without a hearing on October 5, 2006, finding no discrimination. The AJ
found that, after viewing the evidence in a light most favorable to
complainant, a decision without a hearing was appropriate as there were
no genuine issues of material fact in dispute.1 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. On appeal,
complainant reiterates his contention that the agency subjected him to
unlawful national origin, age, and reprisal discrimination.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute 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 Construction 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 United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 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, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Here, we concur with the AJ's finding that assuming, arguendo,
complainant established a prima facie case of national origin, age, and
reprisal discrimination, the agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. The record reflects that
on October 25, 2005, complainant requested three hours of overtime in
order to complete the delivery of his route. Complainant's supervisor
determined that, based upon the volume of mail, complainant only needed
one hour and forty-five minutes of overtime to complete his route.
Complainant, however, did not complete the delivery of his route
and instead returned to the facility with one hour's worth of mail
which he had failed to deliver. The record shows that, in response to
complainant's actions, management conducted a pre-disciplinary interview
on October 27, 2005, and subsequently issued a LOW, dated October 31,
2005, charging complainant with unsatisfactory work performance. (Report
of Investigation, Exhibit 5-6). The record also reflects that on December
5, 2005, management granted complainant one hour and fifty-four minutes
of overtime in order to complete his route. Complainant returned to the
facility with one hour and fifteen minutes left of undelivered mail.
The record shows that again, as the result of complainant's actions,
management conducted a pre-disciplinary interview on December 31, 2005,
and subsequently issued complainant a notice of seven-day suspension,
dated January 12, 2005, for unsatisfactory work performance and failure
to follow instructions. (R.O.I., Exhibit 7-8).
Upon review of the record, we concur with the AJ's finding that the
discipline issued to complainant was in accordance with the policies
and practices of the agency regarding unauthorized overtime and the
curtailing of mail, as well as commensurate with the agency's progressive
discipline policy. We find that complainant has proffered no evidence
from which a reasonable fact finder could conclude that the agency's
actions were motivated by discriminatory or retaliatory animus toward
complainant's protected classes. Accordingly, we concur with the AJ's
finding that complainant failed to show that the agency's articulated
reasons for its actions were a pretext for unlawful discrimination.
We also concur with the AJ's finding that complainant failed to establish
that he was subjected to a hostile work environment. In so finding, we
note that, to the extent complainant contends that the incidents alleged
constituted harassment based upon his membership in protected classes,
the Commission finds that since he failed to refute the legitimate,
nondiscriminatory reasons proffered by the agency for its actions, he
also failed to establish that such actions were taken on the basis of his
membership in the protected classes. Accordingly, complainant failed to
establish that he was subjected to prohibited harassment. See Bennett
v. Department of the Navy, EEOC Request No. 05980746 (September 19,
2000); Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998).
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' final order is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
August 6, 2008
__________________
Date
1 We note that during the processing of the instant complaint, complainant
raised the allegation that management denied him official time to meet
with his EEO representative because his representative had exceeded the
limit on the amount of time he was permitted to act as a representative.
In her decision, the AJ addressed the alleged denials of official time
and found that the agency acted consistent with the guidance found in
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), pp. 6-15 through 6-17. (November 9, 1999). Upon review of
the record, we concur with the AJ's finding with respect to this issue.
??
??
??
??
2
0120070619
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070619