0120090409
01-10-2011
Reynaldo Villanueva, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Reynaldo Villanueva,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120090409
Hearing No. 460-2008-0008X
Agency No. 4G-770-0218-07
DECISION
On November 5, 2008, Complainant filed an appeal from the Agency's October
6, 2008, 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 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
The issues presented are: (1) whether the EEOC Administrative Judge (AJ)
properly issued a decision without a hearing and (2) whether Complainant
established that he was subject to discrimination or harassment as
alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier, CC-01, at the Agency's Park Place Station, Houston
Post Office, in Houston, Texas. On June 14, 2007, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the
bases of national origin (Hispanic), age (50), and reprisal for prior
protected EEO activity when:
1. on March 13, 2007, he received a Letter of Warning (LOW);
2. in March 2007, he was charged with leave without pay (LWOP)
instead of sick leave; and
3. beginning on January 30, 2007, he was subjected to a hostile
work environment regarding his duty assignment and job performance.1
At the conclusion of the investigation, the Agency provided Complainant
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 Agency submitted a Motion for a Decision
without a Hearing on May 30, 2008. Complainant filed his opposition on
June 11, 2008. The AJ assigned to the case determined that the complaint
did not warrant a hearing and issued a decision without a hearing on
September 26, 2008.
The AJ found the following facts:
On March 3, 2007, the Postal Service assigned Complainant to carry mail on
Route 1709. AJ's Decision at 17. As part of Complainant's letter carrier
duties he is required to scan managed service points (MSPs). Id. MSPs are
placed at various points on a letter carrier's route to track the letter
carrier throughout the day. Id. Each carrier was required to scan three
MSPs in the station and four MSPs on the street. Id. A review of the MSP
Missed Scan Report and MSP Route Report for Complainant's route showed
that he failed to scan his MSP Depart to Route Scan. Id. On March 5,
2007, Supervisor, Customer Service, conducted an investigative interview
during which Complainant denied that he failed to scan the MSP. Id.
On March 13, 2007, Complainant's supervisor, Supervisor, Customer
Service (SCS1) issued Complainant a LOW for failure to follow
instructions/unsatisfactory work performance when he failed to scan a MSP.
Id. at 18. Complainant filed a grievance regarding receiving the letter
of warning. Id. As a result of the grievance process, the Agency agreed
to expunge the letter of warning. Id.
Sometime in March 2007, Complainant submitted a PS Form 3971, Request for
Notification of Absence, requesting sick leave in advance of a doctor's
appointment on March 6, 2007. Id. On March 6, 2007, the Agency charged
Complainant with LWOP because he failed to provide medical documentation
to substantiate his absence. Id. at 19. As a result of a grievance
settlement, the Agency agreed to grant Complainant eight hours of
sick leave. Id.
On May 15, 2007, Complainant submitted a PS Form 3996, requesting six
hours of auxiliary assistance (overtime) with his route. Id. The Agency
approved 57 minutes of overtime. Id. After 5:00 PM, Complainant called
the Acting Station Manager (ASM) and informed her that he still had
two hours or more of mail to deliver. Id. ASM expected Complainant
to return to the station by 7:30 PM. Id. When Complainant failed to
return to the station, ASM instructed Supervisor, Customer Service,
(SCS) to locate him out on the route. Id. SCS located Complainant
at 9:00 PM delivering mail at an apartment complex on his route. Id.
Complainant worked a total of thirteen hours on May 15, 2007. Id.
On an unspecified date, Complainant alleged that ASM stated that she
would send the Office of Inspector General (OIG) to "get him." Id.
ASM denied making this statement. Id.
The AJ found that no genuine issues of fact were in dispute such that a
hearing was warranted. Id. at 20. The AJ further found that claims 1
and 2 were moot because they were resolved through the grievance process.
Id. at 21. Nevertheless, the AJ continued to analyze all three claims
on their merits. The AJ found that Complainant failed to establish a
prima facie case of national origin, age, and retaliation discrimination
with regard to all the claims. Id. at 21-27. The AJ also found that
Complainant failed to establish that he was subjected to a hostile work
environment because he failed to demonstrate that the Agency's actions
were taken based on discriminatory animus. Id. at 25.
The AJ also concluded that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Id. at 27-29. The AJ found
that Complainant failed to demonstrate that the proffered reasons were
a pretext for discrimination. Id. at 29. The AJ ultimately concluded
that Complainant failed to establish that he was discriminated or harassed
as alleged.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
CONTENTIONS ON APPEAL
The record reveals that Complainant and Agency both submitted multiple
statements on appeal. The Commission's regulations provide that
"any statement or brief on behalf of a Complainant in support of an
appeal must be filed within 30 days of filing the notice of appeal."
29 C.F.R. � 1614.403(d). "Any statement or brief in opposition to an
appeal must be submitted to the Commission . . . within 30 days of receipt
of the statement or brief supporting the appeal." 29 C.F.R. � 1614403(f).
The regulation does not provide for any further submissions on appeal.
Accordingly, we exercise our discretion to only consider the timely briefs
submitted by each party in this case. To the extent that Complainant
believes he has been discriminated against since the filing of this case,
Complainant is required to contact an EEO Counselor regarding those new
allegations of discrimination.
In Complainant's December 2, 2008 brief in support of his appeal, he
argues that the Report of Investigation (ROI) was not adequately developed
and was missing a copy of the "3996" form in which he requested overtime.
Complainant also argues that the ROI was missing the "all carrier report"
which would have shown that he was not the only carrier who did not
"make the approved overtime that was given to them." Complainant also
argues that there are issues of credibility because the affidavits
of management are contradictory. Complainant further states that he
provided additional material facts to demonstrate that his version of
what occurred was the truth. Complainant also alleged other incidents
where management attempted to retaliate against him and subject him to
a hostile work environment.
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).
We find that after a careful review of the record, the AJ appropriately
issued a decision without a hearing. The record reveals that ample
notice of the proposal to issue a decision without a hearing was given
to the parties; a comprehensive statement of the allegedly undisputed
material facts existed; the parties had the opportunity to respond to
such a statement, and the parties had the chance to engage in discovery
before responding.
Although Complainant argues that the record was not fully developed
because it did not contain a "3996;" we find that the record contains
a 3996 form dated May 15, 2007. Complainant also contends that an "all
carrier report" would show that he was not the only carrier to fail to
complete his assignment during any approved overtime. Even assuming that
is the case, we nevertheless find that the record contains sufficient
evidence to issue a decision without a hearing. Further, Complainant
has not demonstrated that a genuine issue of material fact exists such
that a hearing is warranted with regard to his claims.
In order to prove a claim of discrimination or retaliation and in
the absence of direct evidence of discrimination, the allocations
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant
must establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. Id. at 802. Next, the Agency must
articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the Agency is successful, then Complainant must prove, by a
preponderance of the evidence, that the legitimate reason proffered by
the agency was pretext for discrimination. Id. at 256.
In order to establish a prima facie case of discrimination based on
national origin or age, Complainant must show that he is a member of a
protected group and that he was subjected to an adverse employment action.
Packard v. Department of Health & Human Serv., EEOC Appeal Nos. 01985494,
01985495 (Mar. 22, 2001). He must also show either that he was treated
less favorably than other similarly situated employees outside of his
protected group, id., or must present other, noncomparative evidence
which supports an inference that the Agency was motivated by unlawful
discrimination. See O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4
(Sept. 18, 1996).
Similarly, for analysis of claims based on reprisal, Complainant can
establish a prima facie case of retaliation by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Specifically, in a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, supra, to establish a prima facie
case of reprisal, he must show: (1) he engaged in a prior protected
activity; (2) an official acting on behalf of the Agency was aware of
the protected activity; (3) he was subjected to adverse treatment by
the Agency; and (4) a nexus, or causal connection, exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
With regard to claim 1, we find that Complainant failed to establish a
prima facie case of national origin, age, or reprisal discrimination.
We find that Complainant has failed to proffer any evidence to show that
he was treated less favorably based on any of his protected classes when
he was issued the LOW. Even viewing the facts in a light most favorable
to Complainant, the record is replete with LOWs issued to other employees
outside of his protected classes for the same infraction. Further,
nothing in the record supports Complainant's contentions that the Agency
was motivated by discriminatory or retaliatory animus. Accordingly, we
find that Complainant failed to establish he was discriminated against
with regard to claim 1.
With regard to claim 2, nothing in the record supports Complainant's
claims that this incident occurred due to his membership in any protected
class. Accordingly, we find that Complainant failed to establish a prima
facie case of national origin, age or reprisal discrimination regarding
claim 2.
Turning to claim 3, we note that in order to establish a claim of
harassment Complainant must show that: (1) he belongs to a statutorily
protected class; (2) 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 his statutorily protected
class; (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; and (5) there is a basis for imputing liability to the
employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been "sufficiently severe or pervasive
to alter the conditions of [Complainant's] employment and create an
abusive working environment." Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice
No. 915.002 at 6 (March 8, 1994).
Complainant alleges the following incidents comprise his harassment claim:
a) he received a letter of warning, b) he was charged leave without pay,
c) he was forced to work more than 12 hours, and d) he was told the Office
of Inspector General would "get him." Complainant contends in his brief
that these incidents are harassment because the grievances filed in the
disciplinary actions were successful. We find, however, that Complainant
has failed to show that these incidents were sufficiently severe or
pervasive to render his work environment hostile. Further, we note that
Complainant has failed to show that these incidents occurred due to his
membership in any protected class. Accordingly, we find that Complainant
failed to establish that he was subjected to unlawful harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the Agency's
final order adopting the AJ's decision issued without a hearing finding
that Complainant failed to establish that he was discriminated against
as alleged.
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
__1/10/11________________
Date
1 Complainant alleged that he had been subjected to a hostile work
environment when a) he received a letter of warning, b) he was charged
leave without pay, c) he was forced to work more than 12 hours, and d)
he was told the Office of Inspector General would "get him."
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0120090409
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090409