0120092519
10-21-2009
Anne M. Johnston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anne M. Johnston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092519
Agency Nos. 4F-852-0034-05
4F-852-0149-05
Hearing No. 350-2005-00237X
DECISION
Complainant timely initiated an appeal from the agency's April 23, 2009
final action concerning the two captioned EEO complaints that claimed
unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.504.
In the two captioned formal complaints, complainant, a former Mail
Processing Clerk, at the agency's Fountain Hills Post Office in Fountain
Hills, Arizona, claimed that the agency discriminated against her on
the bases of religion (Lutheran) and in reprisal for prior EEO activity
when:
1. on November 19, 2004, the Station Manager provided negative
information to the selecting official for the Young Post Office Postmaster
position because she testified in a named employee's EEO case (Agency
No. 4F-852-0034-05, hereinafter referred as "Complaint 1");
2. on February 15, 2005, she was stopped by the Phoenix Police Department
and subsequently, on February 19, 2005, was placed in a non-pay emergency
off-duty status (Complaint 1); and
3. on June 23, 2005, she was removed from the agency for Violation of
Postal Standard of Conduct - Unauthorized Possession of Postal Records
(Agency No. 4F-852-0149-05, hereinafter referred as "Complaint 2").
Following the investigation into her formal complaints, complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
consolidated Complaints 1 and 2 in the interest of judicial economy,
pursuant to 29 C.F.R. � 1614.606. On April 7, 2006, the agency filed a
Motion for Decision Without a Hearing. Complainant filed a Response to
the Agency's motion. On December 31, 2008, the agency filed a Motion
to Dismiss. Therein, the agency argued that instant complaints should
be dismissed pursuant to 29 C.F.R. � 1614.107(a)(3) on the grounds that
complainant had litigated the same issues in the U.S. District Court
for the District of Arizona.
On April 13, 2009, the AJ issued a decision by summary judgment in favor
of the agency, finding no discrimination. On April 23, 2009, the agency
issued its final action implementing the AJ's decision.
In her April 13, 2009, the AJ noted that the agency filed a motion
requesting that the instant formal complaints be dismissed on the grounds
that complainant filed a civil action concerning the same issues. The AJ
noted, however, that complainant filed a response stating that she was
moving to dismiss her civil action. The AJ noted that the U.S. District
Court for the District of Arizona had already dismissed the instant
complaints. The AJ determined that upon review of the record, the facts
of complainant's non-pay emergency status are the underlying basis for
the civil action. The AJ dismissed the non-pay emergency status issue
pursuant to 29 C.F.R. � 1614.107(a)(3). The AJ determined, however, that
even if this issue had not been dismissed, the agency was nonetheless
entitled to summary judgment because complainant failed to show that
the agency acted with discriminatory intent when she was placed on a
non-pay emergency status and ultimately removed from agency employment.
Specifically, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant failed to
show were a pretext.
Further, the AJ found that complainant did not show by a preponderance of
the evidence that she was discriminated against on the bases of religion
and in reprisal for prior protected activity concerning claims 1 - 3.
The AJ noted that in regard to claim 1, three candidates, including
complainant, were selected for a final interview with the selecting
official (SO) for the position of Postmaster, EAS-13 at the agency's
Young, Arizona facility. The AJ further noted that the SO chose selectee
for the subject position because of her extensive work experience.
Regarding the contention that the Station Manager (SM) provided
negative information to SO because complainant testified in a named
employee's EEO case, the AJ noted that according to SM, he was not a
part of the selection process and did not supply any information to
SO concerning complainant. Specifically, SM stated "to my knowledge
no one in management was upset that [complainant] had been called as
a witness in another person's EEO nor were we out to get [complainant]
because of her previous EEO activity."
Regarding claim 2, the record reflects that on February 15, 2005, the
Phoenix police stopped complainant because her vehicle license plate
was covered with a piece of cardboard and she was driving without the
headlights on. The record further reflects that the police observed that
complainant was dressed all in black, with underwear around her neck,
as a mask. Upon searching complainant's vehicle, the police discovered
latex gloves, a flashlight, a screwdriver, a river rock wrapped in
napkins, and confidential postal box documents.
The AJ noted that according to SM, the USPS Inspection Service called
his office stating that they had received a record from the Phoenix
Police indicating that on February 15, 2005, complainant was stopped by
the police "under suspicious circumstances very early in the morning.
They believed she was either going to or coming from a crime. They found
Post Office Box Records in her vehicle." SM stated that he conducted a
fact finding with complainant and "she refused to answer any questions
regarding the incident and denied having any box records in her car.
I placed [complainant] in an off duty status after conferring with my
[named Postmaster] and the Labor department."
Regarding claim 3, SM stated that following the filing of complainant's
grievance, management agreed to conduct a second fact finding in which
complainant agreed to cooperate. SM stated that during the second fact
finding, complainant's answers were "contrived and in many cases prepared
in advance and read from her notes the response were unrealistic and
did not support the facts. After reviewing her response and discussing
it with my [postmaster] and Labor relations, we agreed the responses
were not credible and that she did not see anything wrong with taking
box records if it served her purposes. It was felt that we would be
unable to trust this employee with customer and Postal records that if
she had access to this kind of material she could and would use it to
her own personal gain."
On May 16, 2005, SM issued complainant a Notice of Removal for Violation
of Postal Standard of Conduct/Unauthorized Possession of Postal Records.
The record reflects that SM relied on the following Sections of
the Employee and Labor Relations Manual: Section 661 "Employees are
expected to discharge their duties conscientiously and effectively;"
Section 668.3 "Records; Information and Associated Processing Systems
and Equipment;" Section 668.33 "Prohibited Uses;" and Section 668.34
"Protection Responsibilities." SM stated that complainant's religion and
prior protected activity were not factors in his determination to remove
her from agency employment. Moreover, SM stated the fact that complainant
"had confidential records copies and was using them for personal gain,
that she took information that as a knowledgeable employee she would
have know was confidential and also left it unprotected by having it in
her car were the reasons for the removal."
The Postmaster (PM) stated that he was the concurring official concerning
complainant's removal. PM stated that complainant was removed from agency
employment because she "took restricted information from the Post Office
that had confidential information about our customers. The restricted
information was found in [complainant's] vehicle and was not properly
safe guarded. This information was taken from the Post Office without
the knowledge of management. This action has forever compromised
the employer/employee trust factor. In short, [complainant] cannot be
trusted with the information that her specific job required her to handle
on a daily basis." Furthermore, PM stated that he did not discriminate
against complainant based on her religion and prior protected activity.
On appeal, complainant argues that she is not challenging the AJ's finding
of no discrimination concerning claim 1. However, complainant argues
that she is challenging the AJ's findings of no discrimination concerning
claims 2 and 3 because the AJ "erred as a matter of law. On those issues,
[complainant] respectfully requests that the Administrative Judge's
decision be reversed and her claims related to both her placement in
non-pay emergency off-duty status and her removal from the Postal Service
be reinstated."
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.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, 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.1
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
October 21, 2009
__________________
Date
1 Because we affirm the AJ's finding of no discrimination concerning
claims 1 - 3, we find it unnecessary to address the dismissal of
complainant's non-pay status (portion of claim 2) on alternative
procedural grounds (i.e. filing a civil action).
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0120092519
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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