0120141910
10-16-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120141910
Hearing No. 510-2014-00013X
Agency No. 1G-331-0018-13
DECISION
Complainant filed an appeal from the Agency's March 27, 2014 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's Miami Processing and Distribution Center facility in Miami, Florida.
On June 12, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), age (59), and reprisal for prior protected EEO activity under Title VII when, on February 20, 2013, a supervisor called a meeting to solicit statements against Complainant.
The record shows that Complainant had filed prior EEO complaints and the named supervisor was aware of his prior EEO activity, race and age. The supervisor called the meeting of employees after he received verbal complaints about Complainant behaving aggressively. Complainant was not present during the meeting, but he was told that his name was mentioned at the meeting. During the February 20, 2013 meeting, the supervisor asked employees to put their complaints against Complainant in writing. No written complaints were submitted. No personnel action was taken against Complainant.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ). When the Complainant did not object, the AJ assigned to the case granted the Agency's February 19, 2014 motion for a decision without a hearing.
The AJ determined that the record was adequately developed for summary disposition and that there was no genuine dispute as to the material facts at issue.1 The AJ found that it was undisputed that the supervisor called together all employees to discuss employee complaints, after the supervisor received complaints regarding certain individuals, including Complainant. The AJ found that Complainant failed to present sufficient evidence to raise a genuine issue of fact with respect to the Agency's articulated reasons for calling the meeting or with regard to the alleged discriminatory harassment.
The AJ reasoned, "Because the Complainant has not introduced affidavits and argumentation that demonstrate that there is a reason to disbelieve the Agency's articulated nondiscriminatory explanation for its actions, there is no genuine issue of material fact." The AJ found that the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment.
She concluded that Complainant failed to establish by a preponderance of the evidence that he was subjected to discrimination and or harassment when his supervisor called a meeting to solicit statements against him.
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.2 Moreover, Complainant does not assert otherwise.
Disparate Treatment - Race, Age, Reprisal
Title VII at Section 717(a) and the ADEA at Section 633(a) require that all employment actions shall be made free from any discrimination based on race or age. 42 U.S.C. � 2000e-17(a) and 29 U.S.C. � 633(a). In addition, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The Commission adheres to the rule that adverse actions need not qualify as "ultimate employment actions" or materially affect the term and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Similarly, the Commission's regulations at 29 C.F.R. � 1614.101(b) provide "No person shall be subject to retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act . . . or the Rehabilitation Act."
In this case, Complainant did not identify any personnel action that was taken against him or provide evidence that any adverse comments had been submitted against him as a result of the supervisor's meeting. In addition, Complainant did not identify anyone who was similarly situated who received better treatment than the Agency provided to him.
For purposes of our analysis, however, we will assume that Complainant established the elements of his prima facie case of reprisal, race and age discrimination.
Next, we find that the Agency met its burden of production. The Agency provided a specific, clear, legitimate and individualized explanation that provided an opportunity for Complainant to satisfy his ultimate burden of proof of pretext. The Agency met its burden because the Agency articulated its business related reasons why the supervisor held a meeting and sought feedback regarding Complainant's behavior. The supervisor served as a supervisor for the unit in which Complainant was assigned and had received complaints alleging aggressive behavior by Complainant. Complainant offered no evidence that the reason was a pretext for any discrimination or reprisal. To survive summary judgment, Complainant would have to offer evidence that the stated reason was a pretext for discrimination. In this case, Complainant did not respond to the motion for summary judgment or offer evidence of pretext.
Harassment
To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct related to membership in that class; (3) the harassment was based on his membership in that class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and / or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Pullano v. U.S. Postal Service, EEOC Appeal No. 0120093726 (July 27, 2011) citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)).
We find, as did the AJ, that there are no disputes of material fact and that the Complainant failed to offer evidence to establish that he was subjected to unlawful harassment that occurred because of his race, age or reprisal.
Accordingly, we AFFIRM the Agency's final decision.
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 tends 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
October 16, 2014
__________________
Date
1 We note that the AJ cited the correct Title VII numerical reference for discrimination claims for federal employees (42 U.S.C. 2000e-16(a)), but she quoted from the language from Title VII at Section 703 (42 U.S.C. 2000e-2(a)(1)), which applies to private sector EEO claims.
2 Complainant alleges that the named official was not his supervisor and Complainant was assigned to a different pay location.
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0120141910
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120141910