0120110553
09-13-2012
Steven Pena, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Steven Pena,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120110553
Hearing No. 480-2010-00102X
Agency No. 1F-918-0013-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 7, 2010 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. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's Processing and Distribution Center in City of Industry, California. Complainant's duty hours were 11:00 p.m. to 7:30 a.m. On April 20, 2009, after working for 45 minutes, Complainant submitted a leave slip to his first-level supervisor (S1) requesting to go home at midnight. S1 approved the leave, but informed Complainant the leave would be marked as unscheduled because it was submitted at the last minute.
After Complainant learned that the leave would be marked as unscheduled, he decided to not take the leave and requested that S1 disapprove the request. S1 told Complainant that the leave had already been approved. Complainant then requested a union steward. S1 agreed to get Complainant a union steward, but requested that Complainant return to work in the meantime. Complainant responded that S1 had 30 minutes to get him a union steward. S1 informed Complainant that under the collective bargaining agreement, he had until the end of Complainant's tour to provide him a union steward. S1 believed that Complainant was angry and not willing to immediately return to work and ordered him to wait in the conference room. Complainant ignored S1's three direct orders to wait in the conference room and walked away. S1 later found Complainant talking with a union steward and again ordered him to go to the conference room. The union steward advised Complainant to obey S1's order. Complainant then complied with S1's order and went to the conference room.
S1 discussed Complainant's defiant behavior with the Maintenance Manager (M1) and M1 suggested that S1 conduct an investigative interview. On April 23, 2009, S1 conducted an investigative interview with Complainant. Complainant told S1 that he failed to follow S1's direct orders because S1 looked angry and he felt threatened. On May 12, 2009, S1 issued Complainant a Notice of 14-Day Suspension for unacceptable conduct/failure to follow instructions. The Notice cited Complainant's prior discipline, including two prior 7-day suspensions. M1 concurred with the suspension.
On May 4, 2009, five minutes after his scheduled reporting time, Complainant called in to the facility and requested emergency annual leave from a supervisor for May 5, 2009. The supervisor instructed Complainant to call the Agency's automated call-in system for emergency or unscheduled leave. Complainant eventually called two more supervisors in attempting to call in for leave. Complainant claimed that the call-in system was not working properly.
On May 5, 2009, Complainant properly used the automated system to request emergency annual leave for May 6, 2009. On May 7, 2009, Complainant returned to work without the required documentation, and S1 conducted an investigative interview. During the interview, Complainant claimed that the automated system was not working properly on May 4, 2009. Additionally, Complainant admitted to not having the requested documentation in support of his absences.
On May 8, 2009, Complainant provided S1 copies of a May 3, 2009 police report and a fire department's report indicating that his apartment manager had made noise and safety hazard complaints about him. In addition, he submitted a letter documenting his purchase of a motorcycle part on May 6, 2009. S1 and M1 determined that the submitted documentation did not support Complainant's need for emergency annual leave on the days in question because the documentation did not correlate with the hours Complainant requested. As a result, Complainant's requests were denied, and he was marked as absent without leave (AWOL) on May 5, 2009, and leave without pay (LWOP) on May 6, 2009.
On July 30, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when:
1. On May 12, 2009, Complainant was issued a Notice of 14-Day Suspension, and
2. On June 11, 2009, Complainant was informed that his annual leave for May 5 and 6, 2009, would be changed to AWOL and LWOP.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) 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 granted the Agency's motion and issued a decision without a hearing on September 27, 2010.
In the decision, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), Complainant was issued the Notice of 14-Day Suspension for not following the S1's instructions on April 20, 2009, and he had prior discipline for engaging in similar behavior. Regarding claim (2), Complainant was marked as AWOL on May 5, 2009 and LWOP on May 6, 2009, after he did not provide documentation in support of his requests for emergency annual leave on either day. The AJ determined that Complainant had presented no evidence showing that the Agency's reasons were pretextual. As a result, the AJ concluded that Complainant had not been retaliated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision. Complainant submitted numerous documents, but no arguments or contentions on appeal.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission 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.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and his arguments on appeal do not undermine the AJ's determination that, even assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, the Commission will assume, without so finding, that Complainant established a prima facie case of reprisal. The Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1), S1 affirmed that Complainant was issued the Notice of 14-Day Suspension after Complainant failed to follow his direct orders. ROI, at 71. S1 believed that Complainant was agitated after S1 informed him that his leave would be charged as unscheduled leave and S1 had not immediately provided a union steward for him. Id. at 91. S1 gave Complainant numerous direct orders to wait for him in the conference room and Complainant ignored the orders until a union steward advised him to obey his supervisor's order. Id. at 92. Complainant failed to mitigate his actions during the investigative interview. As a result, Complainant was issued the Notice of 14-Day Suspension, with M1's concurrence, pursuant to the collective bargaining agreement and based on his prior discipline for similar conduct. Id.
Regarding claim (2), Complainant was charged AWOL on May 5, 2009 and LWOP on May 6, 2009, after he requested emergency annual leave, but failed to submit adequate documentation to support his absences. ROI, at 152. In support of his May 5, 2009 request, Complainant submitted copies of police and fire department reports detailing a complaint about his loud music and motorcycle repair at his apartment complex on May 3, 2009. Id. at 154-56. In support of his May 6, 2009 request, Complainant submitted a letter indicating that he purchased a motorcycle part on May 6, 2009. S1 informed Complainant that, under the guidelines of the collective bargaining agreement, the submitted documentation was not acceptable as justification for the requested emergency annual leave. Id. at 152. Complainant failed to present any acceptable documentation in support of his absences and was charged AWOL on May 5, 2009 and LWOP on May 6, 2009.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged retaliatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for unlawful reprisal. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.
Construing the evidence in the light most favorable to Complainant, the Commission finds that the record is devoid of any evidence that Complainant's prior protected EEO activity was a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant has failed to carry this burden. Accordingly, the Commission finds that Complainant has failed to show that he was retaliated against as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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 (Nov. 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:
__________________ September 13, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
2
0120110553
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013