0120071427
06-28-2007
Joseph F. McHale, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph F. McHale,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071427
Hearing No. 550-2006-00268X
Agency No. 4F-945-0089-06
DECISION
INTRODUCTION
Complainant filed an appeal with the Commission from a final order by
the agency finding no racial discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
Whether complainant was discriminated against, based on race (Caucasian),
when he was issued a Notice of Removal, which was subsequently reduced
to a 14-day suspension, for failure to follow safety procedures and
failure to safely perform the duties of his position.
BACKROUND
On January 18, 2006, complainant's union filed a grievance on his behalf
regarding his Notice of Removal. On February 8, 2006, complainant's
union and the agency reached a settlement agreement wherein complainant's
Notice of Removal was reduced to at 14-Day No-Time-Off Suspension. The
agency investigated the complaint and notified complainant of his
right to request a hearing before an EEOC Administrative Judge ("AJ").
After reviewing the investigative file, the AJ informed the parties
of his intention to issue a decision without a hearing pursuant to
29 C.F.R. �1614.109(g). Both complainant and the agency submitted
responses and the AJ, in a decision without a hearing,1 found that
complainant failed to establish that he was discriminated against.
The agency issued a Notice of Final Action adopting the AJ's decision.
It is from this order that complainant now appeals.
Complainant started employment with the agency on September 10, 1977.
Throughout his employment relevant to this case, complainant was a City
Letter Carrier assigned to the Vallejo Post Office in Vallejo, California.
During his 28 years of service, complainant accrued twenty-three (23)
on-the-job accidents, including the instant accident giving rise to this
EEO complaint. Complainant has had one other motor vehicle accident
besides the motor vehicle accident that is the subject of this complaint.
Complainant's other 21 accidents were considered industrial accidents.
On December 7, 2005, the Postmaster had a meeting with complainant
regarding his safety record. During the meeting, complainant was
warned that if he was involved in another accident, he would be subject
to discipline. On December 13, 2005, complainant was driving his Postal
vehicle while in the performance of his duties. Complainant made a right
turn and then collided with a parked pickup truck. This accident was
complainant's 23rd accident. Complainant contacted his Supervisor to
report the accident. The Supervisor asked complainant what had happened,
and he responded that he "got distracted." The Supervisor went to the
scene, and thereafter completed a PS Form 1700 Accident Investigation
Worksheet regarding the accident.
As a result of the accident, on December 13, 2005, the Supervisor
issued to complainant a Notice of Removal, effective January 6, 2006,
charging him with Failure to Follow Safety Procedures/Failure to Perform
the Duties of your Position. Complainant, when asked about the accident
at his just cause interview, admitted: "I was distracted...which caused
me to be inattentive."
On appeal, complainant disputes the AJ's finding that he did not
sufficiently prove a prima facie case and contends that the Notice
of Removal was a convenient pretext for racial discrimination.
In particular, complainant argues that the Notice of Removal resulted
from a misinterpretation of material facts.
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 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).
After a careful review of the record, the Commission finds that the
AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists such that a hearing on the merits is warranted.
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department 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 Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Mere conjecture or conclusory assertions by complainant that an employer's
explanations are pretext for discrimination is an insufficient basis for
denial of judgment to the employer. See Branson v. Price River Coal Co.,
853 F.2d 768, 777-72 (10th Cir. 1998).
The record indicates that the January 6, 2006 Notice of Removal was issued
because complainant failed to perform the duties of his position in a
safe manner. The record also illustrates that complainant had a meeting
with the Postmaster about his safety performance record. Complainant was
put on notice that if his performance resulted in another accident, he
would be subject to discipline, which included removal. On December 13,
2006, complainant was involved in a preventable motor vehicle accident.
On January 6, 2006, he was issued a Letter of Removal for Failure to
Follow Safety Procedures/Safely Perform the Duties of his Position.
While complainant's Notice of Removal was reduced, after a settlement
by the agency and the union, to a 14-Day No-Time-Off Suspension, we find
that the agency produced a legitimate, nondiscriminatory reason for the
disciplinary action issued to complainant.
Complainant maintains on appeal that his Notice of Removal was a
misrepresentation of material facts and a convenient pretext to
discriminate against him. However, there is absolutely no evidence
in the record supporting complainant's contention that his Notice of
Removal misrepresented the facts in any manner. The record is undisputed
that complainant had a significant history of accidents and that, in
accordance with the meeting between he and the Postmaster, he was put
on notice about the possible consequences if he had another accident.
Complainant acknowledged that he was cognizant of the agency's policy
concerning driving a Postal vehicle in a safe manner.
On appeal, complainant disputes the date of the formal meeting between
the Postmaster and himself, asserting that it was on December 9, 2005,
instead of December 7, as indicated in the record. Assuming complainant
is correct; we find that it is immaterial to the outcome of this case.
Complainant acknowledged that the meeting took place and that it centered
on a discussion of his accident history. Complainant also maintained
that other disciplinary actions, not including removal, were warranted.
We note, however, that employers generally have broad discretion to
set policies and to carry out personnel decisions and should not be
second guessed by the reviewing authority absent evidence of unlawful
motivation. Burdine, 450 U.S. at 259. Complainant has not shown that
other, non-Caucasian employees, with similar accident histories were
disciplined less severely. Finally, complainant argues that after he
was disciplined in 1991, for failing to report an accident in a timely
manner, he began making a good faith effort to obey the instructions
of his manager by reporting all incidents regardless of their severity.
Therefore, he maintains that the majority of the accidents in his safety
record should not have been classified as accidents. Again, even if
complainant is correct, we find no evidence that the agency's policy of
viewing these matters as accidents was applied in a discriminatory manner
towards complainant. Also, if complainant believed that the incidents
should not have been classified as accidents, he should have challenged
their classification at the time they occurred.
CONCLUSION
After review of the record in its entirety, including consideration of
all contentions submitted on appeal, including those not specifically
addressed herein, we affirm the final agency order and concur with the
AJ's granting of summary judgment.
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
__06/28/07________________
Date
1 On appeal, complainant did not challenge the AJ's ruling to issue a
decision without a hearing.
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0120071427
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071427