Alba H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 3, 20160120142998 (E.E.O.C. Mar. 3, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alba H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120142998 Hearing No. 420-2014-00102X Agency No. 4G350011913 DECISION Complainant filed an appeal from the Agency’s July 18, 2014, final order concerning her 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. 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 Postal Support Employee ("PSE") Post Office Clerk, at the Castleberry, Alabama Post Office. On August 28, 2013, Complainant filed an EEO complaint alleging that the Agency engaged in unlawful harassment and discrimination against her on the bases of race (Caucasian), color (White), and reprisal (prior protected EEO activity under Title VII of the Civil Rights Act of 1964) when: (1) on unspecified date(s), her request for annual leave was denied; (2) on unspecified date(s), her request for higher level pay was denied; (3) on unspecified date(s), the Postmaster (S1) reported her for coming to work late; (4) on unspecified date(s), S1 reported her for holding PO Box mail; (5) in June 2013, her request for mileage reimbursement was denied; (6) on unspecified date(s), she had to clean the post office because she did not have a custodian; and (7) on an unspecified date, she was not called back after her five-day break. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120142998 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her 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 June 12, 2014 motion for a decision without a hearing and issued a decision without a hearing on July 9, 2014. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. UNDISPUTED FACTS In his decision, the AJ noted the following undisputed facts: Complainant was employed by the Postal Service between August 10, 2012 and August 4, 2013. Complainant's immediate supervisor (S1) at the Castleberry, Alabama Post Office was the Postmaster of the Evergreen, Alabama Post Office. The Castleberry Post Office was a remote post office which fell under the administrative jurisdiction of the Evergreen Post Office. Complainant’s only EEO activity is the current complaint. S1 was not aware of Complainant's EEO activity until contacted by an EEO investigator. Claim 1 - Denied Leave Complainant's leave requests for May 31, 2013 and June 1, 2013 were denied due to operational needs, i.e., others who were senior to Complainant were scheduled off before Complainant made her requests. Complainant's alleged comparators for the issue of leave denial are not similarly situated because they did not request leave for the same days that Complainant's leave requests were denied. Claim 2 - Denied Higher Level Pay S1 testified that she was unaware that Complainant was entitled to higher level pay for one short engagement (2 days) in April 2013, and when she (S1) received clarification, Complainant was paid the difference between her regular rate and the higher level pay. Claim 3 – Report for Reporting Late S1 did discuss Complainant's tardiness with her (S1’s) superiors, but never issued discipline for tardiness to the Complainant. S1 dealt with an alleged comparison employee’s (C1) tardiness' by having a discussion with him about it. However, C1 did not serve in a leadership role as did Complainant. Accordingly, he was not similarly situated to Complainant. Claim 4 – Reported for Holding P.O. Box Mail S1 testified that the reason she discussed Complainant's retention of unpaid box mail was because the postal regulations justify a hold of no more than ten days and Complainant had held several unpaid boxes for almost a month. Complainant asserts that a comparison 0120142998 3 employee who took over her job engaged in numerous incidents of poor performance but was not disciplined. S1 denies these allegations. Claim 5 - Denied Mileage Reimbursement S1 testified that Complainant was not reimbursed for additional mileage because Complainant volunteered to work the contested hours. S1 further explains that any previous reimbursement of mileage to Complainant or anyone else was because management sought employees to fill the extra hours due to the needs of the service. Claim 6 – Complainant had to Clean Post Office S1 testified that the Postal Service did not renew the contracts for cleaners at the Evergreen Post Office and that Complainant was, in fact, required as part of her job description, to keep the Evergreen Post Office clean. S1 further testified that the alleged comparison employees were Postmasters and did not report to her (S1) at the time that Evergreen had contract cleaners. Claim 7 – Complainant was not Re-hired S1 testified that Complainant was not re-hired after her break in service because she (Complainant) was insubordinate and failed to follow instructions. S1 further testified, contrary to Complainant's assertions, that PSE employees are not guaranteed re-hire after completion of a contract period. The Manager, Post Office Operations (M1) (Caucasian) testified that he concurred with S1's determination not to re-hire Complainant. M1 further testified that he was unaware of Complainant's EEO activity until after Complainant's last day in a pay status. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both 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 0120142998 4 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 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). The AJ concluded that the evidence does not demonstrate that Complainant was treated less favorably than any similarly situated individuals, outside of her protected groups, under the same or similar circumstances. The AJ further noted that Complainant has not produced any evidence that the Agency's actions were unlawfully motivated by her race, color, or prior EEO activity, and has not identified any facts that would suggest that the reasons given by the Agency were a pretext for discrimination. 0120142998 5 We assume for the purposes of this decision that Complainant established a prima facie case of discrimination and harassment. We find that while the record contains evidence that supports a finding that a personality conflict existed between Complainant and S1, the record is devoid of evidence of discriminatory or retaliatory animus on the part of S1. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s decision which adopts the AJ’s finding of no discrimination/retaliation. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 0120142998 6 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s Signature Carlton M. Hadden, Director Office of Federal Operations March 3, 2016 Date Copy with citationCopy as parenthetical citation