0120083984
01-30-2009
Amber Angeline, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Amber Angeline,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083984
Agency No. 4F-956-0150-07
Hearing No. 550-2008-00185X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 19, 2008 final action 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that she was subjected to harassment and a hostile
work environment on the bases of sex (female), disability (herniated
disc), and in reprisal for prior EEO activity when:
(1) On May 16, 2007, the FMLA coordinator denied complainant's mother's
FMLA request to take care of complainant;
(2) on June 8, 2007, she received a letter from the FMLA coordinator
stating that her documentation for FMLA was insufficient and that she
had 15 days to submit additional information;
(3) on September 6, 2007, she was belittled and threatened with discipline
by her supervisor (S1);
(4) on September 18, 2007, she was told by S1 to knock before entering
his office;
(5) on September 24, 2007, S1 criticized her in front of another
employee;
(6) on October 3, 2007, S1 threatened to not pay her an hour of "T" time
(overtime) she was entitled to;
(7) on November 14, 2007, S1 conducted an investigation interview with
her.1
On November 8, 2007, the agency issued a document identified as "This
Notice Rescinds and Supercedes the Initial Partial Acceptance/Partial
Dismissal of Formal EEO Complaint Letter Dated October 25, 2007 [emphasis
added]." Therein, the agency accepted claims (2) - (7) for investigation.
The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim, finding that complainant was not aggrieved
regarding the matter identified therein.
Following the investigation into claims (2) - (7), complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision by summary judgment in favor of the agency. The agency adopted
the AJ's decision in its final action. The instant appeal followed.
The AJ found that the evidence in the record did not establish that
complainant was subjected to harassment based on sex, disability or
retaliation.2 Specifically, the AJ found that the alleged harassment was
insufficiently severe or pervasive to create a hostile work environment.3
The AJ noted that in regard to claim (1), the FMLA coordinator stated
that while complainant's FMLA was never denied, she simply requested
information to correct deficiencies. The AJ further noted that S1 denied
the various interactions complained of, but for the most part, disagreed
with complainant's version of the interactions and denied that his actions
were intended to harass complainant. S1 stated that in regard to claim
(2), he apologized to complainant for complaining about her going over her
six hour restriction because he was not aware that she had been off work
for five months. Regarding claim (3), S1 stated that he asked complainant
to knock before coming in his office if the door was shut because he
was startled on one occasion when complainant came in unannounced.
Regarding claim (4), S1 stated that on September 24, 2007, he did not
criticize complainant for clocking in early in front of a craft employee.
Instead, S1 stated that he criticized another supervisor for allowing
employees to clock in early while going over clock rings for that day.
Regarding claim (5), S1 acknowledged saying that on October 3, 2007,
he should take an hour out of complainant's T time to account for the
hour she would not be working in the morning. S1 stated, however, he
never intended to take an hour from complainant's time. Regarding claim
(6), S1 stated that because the unit failed the mystery shopper test,
he had to conduct several wait in line compliance reviews for which
supervisors, including complainant, were responsible. S1 stated that
even though he had an investigative interview with complainant and her
representative, he did not issue her discipline. Furthermore, the
AJ found that the agency properly dismissed claim (1) for failure to
state a claim because complainant was not aggrieved in its November 8,
2007 partial dismissal.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final action,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 30, 2009
__________________
Date
1 The record reflects that claim (7) was later amended to the instant
complaint.
2 For purposes of its review, the Commission has assumed, without
deciding, that complainant is an individual with a disability within
the meaning of the Rehabilitation Act.
3 The record reflects that in her decision, the AJ noted that complainant
also alleged that her request for advanced sick leave, submitted in
August 2007, was not approved in a timely manner resulting in her not
being paid for 40 hours of sick leave in August 2007. The AJ determined
that a review of complainant's response did not assert material facts
in dispute or offer any additional incidents which comprise the alleged
pattern of harassment beyond what was described in her affidavit.
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0120083984
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083984