0120173065
08-07-2018
Vito E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vito E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120173065
Hearing No. 531-2016-00048X
Agency No. 4K210005015
DECISION
On September 19, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 17, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee at the Agency's Post Office facility in Corriganville, Maryland.
On July 21, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and sex (male) when:
1. On April 22, 2015, Complainant was removed from his position during his probationary period.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's October 20, 2016, motion for a decision without a hearing and issued a decision without a hearing on July 27, 2017. Specifically, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions in the form of the removal notice which charged, among other things, that Complainant continually failed to follow a schedule and he repeatedly bypassed his supervisors to contact district personnel and would argue with his superiors regarding who he should report to. The AJ further found that Complainant failed to establish that these articulated reasons were pretextual. 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.
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.
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. We next find that the Agency articulated legitimate, nondiscriminatory reasons for its action in the form of the Letter of Separation which stated:
You are hereby notified that you will be separated from the Postal Service on 04/22/2015. The reasons for this action are as follows:
1) The SDA audit in your office was deficient in funds to the amount of $163.39.
2) You continually fail to follow your schedule.
3) You did not report to your supervisor that you did not start to work on Sunday 04/19/2015 at 4am as scheduled.
4) Your time record was submitted to reflect that you worked your actual schedule on 04/19/2015 when in fact you did not.
5) Sunday you improperly delivered containers of live chicks to an individual for other addresses.
6)You have repeatedly shown poor conduct when you bypass your supervisors and contact District personnel, and arguing with your superiors concerning who you feel you should report to.
The Agency having articulated legitimate, nondiscriminatory reasons for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason for its action is a pretext. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has not met this burden.
On appeal, Complainant notes that the AJ stated in his decision that he "would assume there are issues of material fact with respect to item numbers one, three, and four [of the removal letter]. . . . However, I am going to focus on item numbers two and [six]2 of the letter." The AJ then addressed the two reasons, finding them to be:
[G]ood reasons for Complainant's termination. Although the other reasons might be questionable, using unauthorized hours and bypassing [the Postmaster (P: male, Caucasian)] and questioning his authority were together good reasons for the termination. Complainant has not offered any evidence that these two reasons were untrue, or were not the real reasons that [P] decided to terminate Complainant's employment.
Complainant argues that the AJ's willingness to accept these two reasons from the letter of Separation while ignoring what the AJ conceded were issues of fact with respect to the remaining reasons shows bias on behalf of the AJ. We disagree. We note that the Commission has held that when an employer gives multiple reasons for its actions, the invalidity of one reason does not necessarily invalidate the remaining reasons. See Emery v. Dept. Of Interior, EEOC Appeal No. 019428502 (May 2, 1994), citing Logue v. International Rehabilitation Associates, Inc., 837 F.2d 150, 153 (3rd Cir. 1988). Thus the fact that some of the reasons provided by the Agency may be in dispute does not change the fact that Complainant has not shown that two of the reasons provided by the Agency were in dispute, and the AJ's decision to focus exclusively on those two reasons is not indicative of bias.
Complainant next argues that reason No. 6 is in dispute because Complainant denies arguing with his supervisor. We note, however, that in order to defeat a motion for summary judgment, complainant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. Complainant's denials are insufficient to meet that standard. Complainant next argues that the AJ "states that 'Nonetheless, [S] articulated legitimate reasons for termination.' So [the AJ] is essentially saying that even if the agency did discriminate against the complainant, it doesn't matter because they still provided legitimate reasons for the termination decision." We find that Complainant is misconstruing the AJ's reasoning by leaving out the preceding sentence. That sentence clarifies that the AJ was saying that not only can Complainant, a probationary employee, not establish a prima facie case because none of the non-probationary comparators cited by Complainant were similarly situated with him, but in addition (i.e. nonetheless), the Agency also provided legitimate reasons for its action.
Finally, Complainant argues that the AJ's Decision, which was a Bench decision, "does not even remotely match the actual . . . hearing . . .. [I]n the actual hearing the Judge Ruled [sic] in the Complainants favor, he stated and I quote 'Decision, The Agency discriminated against the complainant on the basis of sex and race. Off Record [sic], Good Bye." We note that Complainant has provided no evidence to support this claim but even assuming Complainant did not simply mishear what the AJ said and the AJ really did say what Complainant claims he said, the fact remains that the relevant Decision at issue is the written Decision, not any verbal comments that have not been reduced to writing. The written Decision found that there was no discrimination, and no material issue of fact requiring a hearing. Following a review of the record, we agree. Complainant has not shown any evidence of animus by S (who is the same race and gender as Complainant) or others towards Complainant's protected bases. Nor has Complainant met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reasons were pretextual.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing that discrimination occurred and we AFFIRM the final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 7, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that the AJ mistakenly referred to item six as item five.
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