0120070792
08-14-2008
Thomas A. Bernatowicz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas A. Bernatowicz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070792
Hearing No. 170-2005-00583X
Agency No. 4C-164-0014-05
DECISION
Complainant filed an appeal with this Commission from the October 31,
2006 agency decision finding no discrimination. The agency's decision
implemented the October 16, 2006 decision of the EEOC Administrative Judge
(AJ).
In his complaint, complainant, a City Carrier, alleged that the agency
discriminated against him on the basis of reprisal when: (1) on December
30, 2004, he was served with a 14-Day Suspension for Failure to Follow
Instructions which was subsequently reduced to a 7-Day Paper Suspension
pursuant to the grievance procedure; and (2) on January 13, 2005,
complainant was issued a Proposed Letter of Removal for Insubordination.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation (ROI) and notice of his right to
request a hearing before an EEOC AJ. Over the objection of complainant,
the AJ issued a decision without a hearing (summary judgment).
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a
hearing unless the AJ 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 AJ 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).
To prevail in a disparate treatment claim, 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 complainant
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). 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. Texas Department
of Community 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
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the decision is subject to a de
novo review by the Commission. See 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that the grant of summary judgment
was appropriate. Complainant has failed to proffer sufficient evidence
to establish that a genuine issue of material fact exists such that a
hearing on the merits was warranted. Specifically, the Commission finds
that the investigative record was adequately developed; there were no
genuine issues of material fact; and there were no findings of fact made
by weighing conflicting evidence or assessing witness credibility.
As an initial matter, the Commission notes that the AJ addressed
complainant's argument that he was unable to conduct sufficient discovery.
In his response to the motion for summary judgment, complainant raised
discovery as an issue. In his September 6, 2005 request for a hearing,
complainant also asserted that the agency had failed to provide him
with a copy of the ROI so that he could address any deficiencies in it.
The record reveals that the ROI was completed in July 2005. The record
is not clear when complainant received the ROI but he had the ROI at
least by September 6, 2005. As the AJ pointed out in his decision,
complainant failed to avail himself of the discovery process and did
not take action towards discovery until the discovery period had ended.
The Commission next addresses the dismissal of claim (2). Regarding claim
(2), the record reveals that the agency dismissed claim (2) in a May
27, 2005 Partial Acceptance/Partial Dismissal of Formal EEO Complaint.
In its dismissal, the agency determined that claim (2) failed to state
a claim because there was no harm or loss to a term, condition, or
privilege of complainant's employment and that, therefore, complainant
was not aggrieved. The agency reasoned that claim (2) concerned a
proposed personnel action and that complainant had not been removed
from his position. In his decision, the AJ noted that in an October 11,
2005 Acknowledgment and Order (AO) that complainant was advised that if
he objected to the agency's dismissal of claim (2), he had to raise his
objection within 30 days. The AJ also noted that because complainant
failed to submit a timely objection as directed in the AO, he was
upholding the agency's dismissal of claim (2). Complainant has not
shown that he timely raised an objection to the dismissal of claim (2)
to the AJ. Therefore, we find that the matter is properly dismissed.
Furthermore, complainant has not asserted any reason on appeal for
reversing that dismissal.
Regarding claim (1), the AJ found that complainant established a prima
facie case of reprisal. The AJ found further that the agency had
articulated a legitimate, nondiscriminatory reason for its action and
that complainant failed to show that the agency's reason was pretext
for unlawful discrimination. The AJ noted that complainant was issued
discipline because he failed to follow the instructions of his supervisor
when he told complainant to remove his cap because it violated the dress
code and because he failed to follow his supervisor's instruction when
he told complainant that his vehicle wheels needed be curbed. The AJ
also determined that complainant had not shown that other employees who
disobeyed orders were not disciplined.
The record reveals that on December 8, 2004, complainant was observed
wearing a Pittsburgh Steelers' cap by the Delivery Supervisor,
complainant's supervisor; that his supervisor instructed complainant to
remove the cap; and that complainant refused to follow the instruction.
The record also reveals that the cap was unauthorized attire. In his
affidavit, complainant's supervisor stated that he watched complainant
drive away in his vehicle with the baseball cap on, after he specifically
instructed complainant that he was not to wear it. He also stated that
he explained to complainant about the curbing of his vehicle wheels and
that complainant argued with him and said that he did not have to do what
he was told. Complainant's supervisor also stated that complainant did
not follow his instructions constantly; that complainant had a problem
with authority; and that he did not take well to being given direction.
Regarding employees that complainant identified in his affidavit as having
been treated differently, complainant's supervisor stated that four of
the seven employees identified by complainant as having been treated
differently were not under his supervision. Regarding the remaining
three employees, complainant's supervisor stated that although one of the
three employees (Employee-1) wore a hooded sweatshirt under his uniform,
it did not advertise and, also, that he had discussed the matter with the
Postmaster who stated the navy blue sweatshirt was not noticeable and did
not advertise. He stated that Employee-2's attire was addressed with
her and the matter was resolved. Complainant's supervisor also stated
that Employee-3 wore an all-blue winter hat but that the hat did not
have any logos and it tied. He stated that he discussed Employee-3's
attire with the Postmaster who stated that because the hat was blue and
did not have logos, it was acceptable.
Complainant's supervisor also stated in his affidavit that he allowed
an employee to wear a dickey to keep him warm during the winter; that he
had allowed another employee to wear bright orange vests for visibility
during blizzard conditions when he was delivering his route; and that he
allowed a carrier to wear hunting boots in the winter, in order to keep
him warm during Erie winters. He further stated that he has allowed
employees to wear non-Postal issued garments, so long as the garments
did not advertise. He stated that the reason complainant's baseball cap
was not approved was because it was white and had a Pittsburgh Steelers
logo on it.
The record contains Section 933.11, Employee and Labor Relations Manual
(ELM) 17.8, dated October 14, 2004, which reveals that employees could
wear a baseball cap, summer or winter style, but that the cap had to
be postal blue with a vertical corporate emblem. Section 931.23 reveals
that supervisors were responsible for continually observing the uniforms
of employees and taking appropriate corrective action, when necessary,
to ensure that employees were properly attired. Section 931.262,
Conforming with Regulations, reflects that uniformed employees were
responsible for conforming with all uniform regulations.
Section 666.51 of ELM reveals that employees had to obey the instructions
of their supervisors. It also reveals that if an employee had reason
to question the propriety of a supervisor's order, the employee was to
carry out the order and immediately file a protest.
Section 822 of Handbook M-41 reveals that that whenever a driver left
the vehicle, the vehicle had to be parked with the vehicle's front wheels
toward the curb if the wheels were on a flat surface or when the vehicle
was facing downhill. If a vehicle was parked facing uphill, the front
wheels were to be turned away from the curb.
Assuming, without deciding, that complainant has established a prima
facie case of reprisal, the Commission finds that the agency did
not discriminate against complainant. The agency has articulated a
legitimate, nondiscriminatory reason for its action in disciplining
complainant, i.e., failure to follow instructions. Complainant has
failed to establish that the agency's reasons were mere pretext to hide
prohibited discrimination. Construing the evidence in the light most
favorable to complainant, complainant has not shown by a preponderance of
the evidence that the agency's actions were motivated by discriminatory
animus towards him. At all times, the ultimate burden of persuasion
remains with complainant to demonstrate by a preponderance of the evidence
that the agency's reasons were pretextual or motivated by intentional
discrimination. Complainant has failed to carry this burden.
The agency's decision 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 14, 2008
__________________
Date
2
0120070792
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120070792