0120101157
07-12-2010
George A. Cousart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
George A. Cousart,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101157
Hearing No. 550-2009-00108X
Agency No. 4F-940-0143-08
DECISION
On January 13, 2010, Complainant filed an appeal from the Agency's
December 17, 2009, final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Clerk at the Agency's Civic Center Station facility in San Francisco,
California. The record indicates that in Spring 2008, the Agency went
through a review process of its assignments. At that time, Complainant
was in a bid position at the Civic Center Station. However, Complainant
was erroneously designated as an "unassigned regular". As a result of the
review and the erroneous designation, Complainant was notified that his
position was abolished and that he needed to bid on another assignment.
Complainant initially sought to remain at the Civic Center Station. On or
about May 17, 2008, Complainant was reassigned, as an unassigned regular
to Steiner Station. Complainant rejected this position asserting that
it was not within his medical restrictions. Complainant was subsequently
offered and took a second position. Complainant grieved the reassignment.
Complainant was returned to his original bid position through the
grievance when it was discovered that he was not unassigned.
Believing he had been subjected to discrimination, on September 12, 2008,
Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability (major depression, post traumatic
stress disorder, anxiety, and hypertension), age (58), and reprisal for
prior protected EEO activity when:
1. On May 15, 2008, the Complainant's bid to be reassigned to the
Civic Center Station was denied; and
2. On May 17, 2008, the Complainant was received notification that
he was being reassigned to Steiner Station.
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. Over the complainant's objections, the AJ
assigned to the case granted the Agency's motion for a decision without
a hearing and issued a decision without a hearing on November 25, 2009.
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
Complainant appealed requesting that the Commission remand the matter
for furthering investigation. Complainant asserted that the Agency
failed to get an affidavit from a witness who would establish that the
alleged error constituted intentional discrimination. Complainant also
argued that the investigation failed to obtain affidavits from other
employees who Complainant represented in their EEO matters. As such,
Complainant requested that the matter be remanded to the AJ for a hearing.
The agency asked that the Commission affirm its decision to adopt the
AJ's decision finding no discrimination.
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 novo de 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).
Upon review of the record, we find that the record is adequately developed
and that there are material facts in dispute. We note that Complainant
provided no evidence to support his assertion that evidence from the
proffered witnesses would add to the investigation. Complainant asked
that evidence be taken from his previous supervisor. Complainant stated
this witness would show that the erroneous designation was not an error
at all. We find that this is merely his assertion and Complainant could
have obtained an affidavit or other statement from his prior supervisor
supporting his claim. Without such support, we are not persuaded by
Complainant's argument.
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). He
must generally 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its conduct.
See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dept. of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842 (November 13,
1997); Pavelka v. Dept. of the Navy, EEOC Request No. 05950351 (December
14, 1995).
For the purposes of analysis, we assume Complainant is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we
find that the Agency articulated legitimate, nondiscriminatory reason
for its action. We note that the Agency reassigned Complainant based
on its designation of him as an "unassigned" regular who did not have
a bid position. As such, the Manager averred that Complainant was
reassigned to Steiner Station into a residual bid position. When it
was confirmed that Complainant was not unassigned, he was returned to
his bid position at the Civic Center Post Office.
The burden shifts to the Complainant to establish that the Agency's
reason was pretext for discrimination. Complainant merely asserts that
the error was discriminatory. Without support for his contentions, we
find that Complainant has not shown that the Agency's reason constitutes
pretext for discrimination.
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 adoption of the AJ's decision without a hearing finding no
discrimination based on Complainant's age, alleged disability, and/or
prior EEO activity.
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
July 12, 2010
__________________
Date
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0120101157
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101157