0120122345
10-26-2012
John M. Oliva, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
John M. Oliva,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120122345
Hearing No. 480-2010-00651X
Agency No. 1F-921-0026-10
DECISION
Complainant timely filed an appeal from the Agency's March 29, 2012, 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). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against him on the bases of age and reprisal for prior EEO activity, and (2) whether the AJ properly found that Complainant had not proven that he had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Margaret L. Sellers Processing and Distribution Center (MLS) in San Diego, California. Complainant filed a prior EEO complaint on April 7, 2009, and wrote witness statements for a co-worker who filed an EEO complaint in 2008.
On April 13, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (46) and reprisal for prior protected EEO activity when:
1. in April 2009, the Operations Support Specialist (S1) gave Complainant erroneous information regarding the right of a part-time employee to bid on a full-time position;
2. on February 25, 2010, the Agency notified Complainant that his position would be eliminated effective April 9, 2010;
3. on April 10, 2010, the Agency required Complainant to use annual leave or leave without pay (LWOP);
4. on February 25, 2010, the Senior Plant Manager (S2) told part-time regular (PTR) employees that they did not belong in the plant; and
5. on February 25, 2010, S2 told the PTR employees that they would be moved to the city stations.
By letter dated May 5, 2010, the Agency accepted claims (1) through (3) for investigation and dismissed the claims (4) and (5) on the grounds that Complainant was not aggrieved and failed to state a claim. Complainant has not appealed the dismissal of claims (4) and (5).
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. Complainant timely requested a hearing.
On October 31, 2011, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a Response in Opposition to the Agency's Motion on December 4, 2011. The AJ issued a decision without a hearing on March 20, 2012.
In his decision, the AJ concluded that a decision without a hearing was appropriate on all issues, as no material facts were in dispute and no credibility findings needed to be made. The AJ found the following facts: Prior to April 2009, Complainant worked as a full-time Mail Processing Clerk. In April 2009, after having been "excessed" from several full-time positions, Complainant considered bidding on a part-time position because he believed that part-time positions were less likely to be excessed. He asked S1 whether a PTR employee could bid for a full-time position. S1 responded that a PTR employee could do so if the full-time position was newly established, the PTR employee had been a full-time employee in the same bid cluster, and the PTR employee was qualified for the position without training. Notices of position vacancies contained the same information that S1 provided to Complainant. In April 2009, Complainant successfully bid for a PTR position on Tour 3 at the MLS.
In June 2009, the Agency excessed employees from a craft/installation. As a result, in accordance with the collective bargaining agreement, PTR employees could not bid for full-time positions until all of the excessed full-time employees had the opportunity to return to the installation. Vacancy notices included this information, but Complainant did not learn about the change until January 2010.
On February 25, 2010, the Agency notified Complainant and all of the other PTR employees in Complainant's section that their positions would be abolished effective April 9, 2010. Agency officials stated that the decision to abolish the PTR positions was based on mail volume, mail flow, and operational changes. Five of the eighteen other PTR employees in Complainant's section were younger than Complainant, and seven of them had engaged in prior EEO activity.
Complainant was scheduled to end his last tour at the MLS facility at 1:00 a.m. on April 9, 2010, and he and other reassigned employees were scheduled to begin working at the San Diego Downtown facility at 3:25 a.m. on the same day. During an April 8, 2010, meeting, the Manager of Distribution Operations (S3) told the reassigned employees that she had learned it would violate labor laws to require employees to work more than one shift without an eight-hour break between shifts. She stated that the employees could use annual leave or LWOP on April 9 or April 10. Although the Senior Manager of Distribution Operations (S4) told the EEO Investigator that City Operations agreed to allow employees to begin their new assignments on April 12, there was no evidence that anyone communicated this to Complainant. Complainant used seven hours of annual leave on April 10, 2010.
In his decision, the AJ found that Complainant failed to establish prima facie cases of age and reprisal discrimination. With respect to claim (1), the AJ concluded that there was no evidence that S1 was aware of Complainant's age. He found that S1 gave Complainant accurate information about the bidding rights of PTR employees in April 2009, that S1 had no obligation to inform Complainant when the bidding rights changed in June 2009, and that there was no evidence that S1 harbored any bias based on age or treated similarly-situated employees more favorably.
With respect to claim (2), the AJ found that there was no evidence that S2 and S4, the managers responsible for the decision to eliminate Complainant's section, harbored any age-based bias or were aware of Complainant's prior EEO activity. The AJ also found that the gap between Complainant's prior EEO activity and the elimination of his MLS position was too lengthy to create an inference of reprisal. In addition, responding to Complainant's assertion that the Agency allowed some employees whose positions were eliminated in October 2008 to continue to work at the MLS, the AJ found that those employees were not similarly situated to Complainant because they were full-time employees who worked in a different section.
With respect to claim (3), the AJ found that there was no evidence that S3 was aware of Complainant's prior EEO activity. In addition, he concluded that the gap between Complainant's prior EEO activity and the adverse action was too lengthy to create an inference of reprisal.
The AJ concluded that the evidence was insufficient to establish an inference that the Agency discriminated against Complainant on the basis of age or reprisal with respect to any of Complainant's claims. 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. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that S1 misled him into bidding for a PTR position. In addition, he asserts that several female employees in his section filed EEO complaints in January 2010, that the Agency retaliated by eliminating all of the positions in the section, and that the Agency uses bid realignments to eliminate the jobs of older employees and EEO participants. Complainant also asserts that the Agency did not notify the reassigned employees prior to April 10, 2010, that they could change their days off and that all of them used annual leave or LWOP.
In response, the Agency argues that claim (1) is untimely and that Complainant has failed to establish prima facie cases of age and reprisal discrimination with respect to all of his claims.1
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself 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 Chap. 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").
ANALYSIS AND FINDINGS
Decision without a Hearing
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); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (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's decision to issue a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's Motion for a Decision without a Hearing, and he responded to the Motion. There were no genuine issues of material fact in dispute. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ properly issued a decision without a hearing.
Disparate Treatment
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). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence. Burdine, 450 U.S. at 256.
We assume for purposes of analysis, without so finding, that Complainant has established prima facie cases of age and reprisal discrimination. We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant has not shown the reasons to be pretextual.
S1 gave Complainant accurate information about the bidding rights of PTR employees in April 2009. Although S1 did not notify Complainant when the bidding rights changed in June 2009, the revised information was included in vacancy notices. There is no evidence that considerations of age or reprisal motivated S1's actions. Complainant has provided no evidence that S1 gave different information to employees not of Complainant's protected groups or that she otherwise treated similarly-situated employees more favorably than she treated Complainant.
Similarly, there is no evidence that the Agency treated similarly-situated employees more favorably when it abolished Complainant's position in April 2010. On the contrary, the record establishes that the Agency eliminated the positions of all of the section's PTR employees, including those who were younger than Complainant and those who had not engaged in EEO activity. Complainant has offered no evidence to support his assertion that the Agency eliminated the positions because female employees had filed EEO complaints. Moreover, even if it were true, Complainant's assertion would not establish that the Agency discriminated against him because of his age or his prior EEO activity.
Finally, Complainant has not shown that the Agency discriminated against him with respect to his use of annual leave on April 10, 2010. There is no evidence that S3 was motivated by considerations of age or reprisal when she told the reassigned employees that they could use annual leave or LWOP on April 9 or April 10, 2010. Complainant's assertions that all of the reassigned employees used annual leave or LWOP supports the conclusion that the Agency treated Complainant the same way that it treated similarly-situated employees not of his protected groups. We therefore find that the AJ properly determined that Complainant had not established his claims of 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 final order.
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 (Nov. 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 26, 2012
Date
1 Given that a decision has been issued on the merits of claim 1, the agency is foreclosed from now arguing that the claim is untimely.
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0120122345
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122345