0120064401
01-17-2008
James R. Hlinka Jr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
James R. Hlinka Jr,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01200644011
Hearing No. 220-A5-0244X
Agency No. 4C-440-0032-05
DECISION
On July 15, 2006, complainant filed an appeal from the agency's June
23, 2006, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant
worked as a letter carrier, level Q-01, at the Cornersburg Station in
Youngstown, Ohio. On February 2, 2005, complainant filed an EEO complaint
alleging that he was discriminated against on the bases of sex (male) and
disability (bipolar disorder) when, on November 18, 2004, he was issued
a Notice of Removal for an incident that occurred on October 21, 2004.
At the conclusion of the investigation, complainant was provided 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 complainant's objections, the AJ assigned to
the case granted the agency's November 15, 2005 motion for a decision
without a hearing and issued a decision without a hearing on June 14,
2006.
The AJ initially found the following: on November 18, 2004, complainant
was issued a Notice of Removal, effective December 26, 2004, for violation
of the Employee and Labor Relations Manual, Section 666.2, Behavior and
Personal Habits and the Joint Statement on Violence and Behavior in the
Workplace. The Notice states the basis for the action to be complainant's
conduct on October 21, 2004 when he pushed an acting manager (A1)2 causing
him to strike his head on a steel case and fall on his back to the floor.
The AJ further found as follows: complainant asserts that he was issued
the Notice of Removal based on his sex and disability. Complainant
explained that on October 21, 2004, upon returning to the office from
his route, he was approached by A1 and another supervisor (S1), who
instructed complainant to return to his route and deliver his remaining
mail. Complainant stated that he informed A1 and S1 that he was not
on the overtime desired list, had to pick up his son from day care and
had to go home to prepare himself for surgery scheduled the next day.
Complainant stated that he began to have a panic attack and told A1
that he wished to use FMLA leave so that he could go to his doctor.
Complainant stated that A1 refused to let him leave and continued to yell
and point his finger at him. He stated that A1 then bumped his chest,
and complainant pushed him away, resulting in A1 tripping over a stool
and falling.
The AJ next found the following: S1 stated that on October 21, 2004 she
witnessed A1 give complainant a direct order to return to his route.
Complainant refused and said he was going home on FMLA. A1 informed
complainant that he could not take leave because it was the end of
his tour. Both men raised their voices, and then A1 asked complainant
for his badge. Complainant replied "come and get it if you want it".
Complainant then came halfway across the office and stood chest to
chest with A1, grabbed A1 by the shoulders and forcibly shoved him.
A1 left his feet and landed flat on his back about two feet away.
S1 called 911 and A1 was transported to emergency. The AJ additionally
found that Postmaster (P1) stated that he was the concurring official
on complainant's Notice of Removal. P1 stated that he considered the
witness statements, complainant's statement, the police report and the
investigative memorandum in making the decision to issue complainant
the Notice of Removal.
The AJ then found that complainant failed to establish a prima facie
case of disability discrimination because he has not shown that he is
an "individual with a disability" as defined in the Rehabilitation Act.
The AJ further noted that complainant states that he has bipolar disorder
and experiences panic attacks, and that his medical conditions do not
substantially limit any of his major life activities and that he is able
to engage in normal life activities outside of work. The AJ further found
that complainant did not present any medical documentation/evidence
regarding his medical conditions. Accordingly, the AJ found that
complainant did not show that he has a medical/mental condition that
substantially limits one or more of his major life activities, that he
has a record of such impairment, or that he was regarded as having such
impairment.
The AJ further found that complainant failed to establish a prima facie
case of sex discrimination because he did not present evidence showing
a causal connection between his sex and his termination. The AJ noted
that the record shows that complainant was terminated for physically
assaulting his supervisor. The AJ further found that the record shows
that complainant was charged and found guilty of first degree assault.
Additionally, the AJ noted that complainant identified both female and
male comparative employees, none of whom were supervised by complainant's
supervisor. In addition, the AJ found that none appear to have engaged
in conduct as egregious as complainant's conduct. The AJ further found
that the majority of the comparative employees appear to have been also
issued Notices of Removal/other discipline and both males and females
returned to work thereafter during the grievance procedure.
The AJ then found that the agency articulated legitimate, non
discriminatory reasons for the action taken. The AJ found that no
evidence was presented to show that complainant's sex and/or disability
were motivating factors in the agency's actions. The AJ found that even
if the evidence is considered in a light most favorable to complainant,
complainant presented no evidence showing that his sex or disability
were factors in the agency's actions. Accordingly, the AJ found that
complainant failed to prove that he was discriminated against based on
his sex and/or disability as to his termination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
On appeal, complainant, through counsel, argues that the agency made
contradictory arguments in United States Postal Serv. v. National
Association of Letter Carriers, Case No. 2003 FED App. 0180P; and Omites
v. United States Postal Serv., USA Merit Systems Protection Board Docket
No. CH-0752-00-0241-1-1, wherein the agency argued that the termination
of employees was not appropriate and that the Memorandum of Understanding
did not require termination. Complainant also emphasizes that all other
individuals involved in violence at the agency have been returned to
their jobs as readily admitted by the Postal Service. Complainant also
explains that he had been advised that when he was experiencing a panic
attack, he should avoid people and leave the stressful situation, which
is why at the beginning of the confrontation in question, he told A1
that he was going home on FMLA leave.3 He notes that instead, A1 (who
was aware of his past history of panic attacks and attempted suicide),
violated the working relationship between employees and supervisors
by physically preventing complainant from leaving the building thereby
aggravating his mental condition which A1 knew could result in violence
and cause a panic attack
Complainant also states that no medical documentation was submitted
whatsoever regarding any type of injury sustained by A1 and that A1
was seen exercising at the local YMCA within a week of the incident.
Further, complainant asserts that although he pleaded no contest to
the charges of physical assault, a plea of no contest to a charge
in municipal court creates no determination as to any liability for
the charge alleged to have taken place. Complainant requests that we
reverse the final order and remand the case for a hearing. In response,
the agency requests that we affirm the final order.
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 de novo review . . .");
see also EEOC Management Directive 110, 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. 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 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).
In the instant case, we find that the AJ properly issued a decision
without a hearing.
In analyzing a disparate treatment claim under the Rehabilitation
Act and Title VII, where the agency denies that its decisions were
motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) he is an
"individual with a disability"; (2) he is "qualified" for the position
held or desired; (3) he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
For purposes of this decision, we assume arguendo that complainant is
disabled pursuant to the Rehabilitation Act4, and that he otherwise
established a prima facie case of discrimination on the alleged bases.
Here, the agency has articulated legitimate, nondiscriminatory reasons for
its actions. In an attempt to establish pretext, complainant presents
a different version of what transpired in terms of the altercation
on October 21, 2004. Essentially, he argues that A1 provoked him,
knowing that he would suffer a panic attack and that he might become
violent. He also argues that A1 was not badly hurt. Even believing
complainant's version of the events, this record does not indicate that
disability or sex-based animus motivated management to terminate him.
We note additionally, that even assuming that complainant is disabled,
the Commission's Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities at Question 30 specifically indicates
that an employer may discipline an individual with a disability for
violating work place conduct standards even if the misconduct results
from a disability. Further, as to complainant's assertion that others
were brought back to work after they were terminated, we note that the
failure to reinstate complainant was not an accepted issue in this case.
Moreover, the only record evidence on this point indicates that the
employees who were terminated and subsequently returned to work, did
so as a result of the grievance process, a process of which complainant
was also able to take advantage. In addition, the record indicates that
both males and females were returned to work after they were terminated,
which undermines complainant's sex discrimination claim. Based on this
record, we are not persuaded, by a preponderance of the evidence, that
the agency's actions were motivated by discriminatory factors.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.5 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
January 17, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The record indicates that this individual was not complainant's direct
supervisor. However, A1's wife was complainant's direct supervisor.
3 We note that complainant does not specifically contend, and we do not
find, that complainant's request to use FMLA leave on October 21, 2004,
constituted a request for reasonable accommodation within the meaning
of the Rehabilitation Act.
4 We note, however, that complainant failed to submit into this record
any medical evidence in support of his claimed medical impairments.
5 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120064401
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036