0120070783
06-19-2009
Ariane Bach, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ariane Bach,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070783
Hearing No. 480-2006-00193X
Agency No. 4F-926-0092-02
DECISION
On November 20, 2006, complainant filed an appeal from the agency's
October 12, 2006 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. For the following reasons, the Commission AFFIRMS the
agency's final action.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Part-Time Flexible Mail Processing Clerk at the agency's work facility
in Irvine, California.
On June 28, 2002, complainant filed an EEO complaint wherein she claimed
that she was discriminated against on the bases of race (Asian) and sex
(female) when:
1. She was denied pay for jury duty on January 18, 2002.
2. She was accused of fraud in her request for jury duty pay and given
a notice of removal.
3. She was not paid correctly for jury duty on January 24 and 28, 2002.
4. Her scheduled day off was changed to January 28, 2002, when she
notified the agency of her summons for jury duty.
5. She was required to report to duty on February 1 and 2, 2002, when
she called in sick.
6. She was not paid for sick leave taken on February 12, 2002 and March
15, 2002.
7. She was placed in an off-duty status on April 29, 2002.
8. Beginning in July 2001, part-time flexibles that were junior to her
were receiving more work hours than her.
On July 9, 2002, the agency issued a partial acceptance/dismissal
accepting claims 1 - 7 for investigation. The agency dismissed claim (8)
on the grounds of untimely EEO Counselor contact given that complainant
was aware in August 2001, of the junior part-time flexibles receiving
more work hours than her, yet she did not initiate contact with an EEO
Counselor until March 7, 2002.
At the conclusion of the investigation, complainant was provided 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. However, the AJ issued a summary decision without a
hearing adopting the agency's Motion for Findings of Fact and Conclusions
of Law Without a Hearing. The agency adopted the AJ's decision finding
no discrimination. Thereafter, complainant filed an appeal with the
Commission.
In Bach v. United States Postal Service, EEOC Appeal No. 01A46085
(April 6, 2006), we found that significant deficiencies existed in the
investigative record and that complainant had been denied discovery
which went to the heart of her claims of discrimination. Therefore,
we vacated the agency's final action and remanded the complaint
for a hearing. Bach, EEOC Appeal No. 01A46085. In the interest of
"avoiding fragmentation," the Commission did not address whether claim
(8) was properly dismissed and remanded the entire complaint. Id.
Prior to the hearing, the agency filed a Motion for Decision Without a
Hearing. On August 29, 2006, the AJ found that the agency was entitled
to a partial decision without hearing with regard to claims 3 - 6 based
on the reasons set forth in the agency's Motion, which complainant did
not dispute. The AJ noted that complainant did not seek any discovery
as to these claims. In terms of claim (3), complainant sought payment
for jury duty on January 24, 2002. The agency noted that complainant
received 3.06 hours of pay for jury duty since as a part-time flexible
who was only entitled to 38 hours of straight time for the week, she
had worked 34.94 hours on the other four days. Regarding jury duty pay
for January 28, 2002, the agency's position was complainant had to use
her own time for jury duty since that day had become her day off due
to a staff shortage. With regard to claim (4), the agency explained
that complainant's day off was shifted to January 28, 2002, because
a coworker had called in sick and there was a staff shortage. As for
claim (5), the agency explained that complainant was expected to work
because five window clerks were needed to fully staff the window and only
four clerks were available without complainant. The agency noted that
complainant received 4.27 hours of sick leave rather than eight hours
since she could work no more than 38 hours a week. With respect to claim
(6), the agency stated that complainant was not paid any sick leave for
February 12, 2002, because she had already worked more than 38 hours that
week. As for complainant's request for sick leave for March 15, 2002,
the agency stated that complainant was paid eight hours of sick leave.
The hearing was limited to claims 1, 2, and 7. The AJ held a hearing on
September 6 - 7, 2006, and issued a decision on September 20, 2006.
The AJ found that complainant had not been discriminated against with
regard to either of the alleged bases. The AJ noted that complainant
had received six hours of pay for jury duty for January 18, 2002,
and subsequently had filed a grievance so that she could obtain an
additional two hours of pay for jury duty for that day. However, the
record revealed that complainant was only supposed to call the court
on that day instead of appearing and that rather than performing jury
duty, she merely went down to the court for fifteen minutes. The AJ
noted that the agency was unaware that complainant had done this until
it undertook an investigation pursuant to the grievance that she filed.
The agency explained that complainant was placed in an off-duty status and
subsequently issued a notice of removal based on the lack of integrity
that she demonstrated by seeking payment for jury duty when in fact
she did not serve on a jury on January 18, 2002. The AJ noted that the
agency made efforts to resolve the matter without removing complainant
but that complainant rejected the agency's various settlement offers.
With regard to the comparatives cited by complainant, the AJ stated
that one comparative was not comparable to complainant because he had a
different supervisor and a different second-level manager. As for the
other four comparatives, the AJ stated that they were not similarly
situated to complainant in all relevant aspects. The AJ noted that
none of these comparatives filed a grievance which gave rise to an
investigation of the circumstances of the request for leave and leave
approval. According to the AJ, there was no agency policy to routinely
investigate employee requests for court leave beyond the face of form
3971 and attached documentation. The AJ noted with regard to two
comparatives that they were not similarly situated because there was
no suspicion of their claims for jury duty. As for the individual most
closely comparable to complainant, the AJ noted that his claim for jury
duty was suspicious and that he was treated the same as complainant with
the difference being that unlike complainant, he threw himself on the
mercy of the agency and entered into a last chance agreement. The AJ
reasoned that it was not credible that complainant was confused about
the summons or her entitlement to court leave. The AJ found that the
agency properly dismissed claim (8) for untimely EEO Counselor contact.
The agency subsequently issued a final action adopting the AJ's findings.
On appeal, complainant contends that the AJ erred in determining that
the comparatives were not similarly situated to complainant because they
had different supervisors. Complainant notes that the discipline in this
matter was issued by the Postmaster, who was responsible for each agency
employee in the city of Irvine. Complainant also argues that unlike
the comparatives, she filed a grievance because she was the only one
who received six hours of jury duty pay rather than the eight hours that
they received. Complainant argues that the comparatives were mistakenly
paid court leave but it was excused because the timekeeper made an error.
Complainant states that the timekeeper also made an error by inputting her
for court leave and the supervisor made a mistake when she approved it.
Complainant also claims that the AJ never ruled on her Motion to Compel
and Request for Subpoena dated August 29, 2006.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission
finds that the investigation of the complaint is now adequate.
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).
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). She
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).
With regard to claims 3 - 6, the record supports the positions that
were presented by the agency and adopted by the AJ without a hearing.
Complainant received certain amounts of pay for jury duty and sick
leave that corresponded to her part-time flexible status which only
entitled her to 38 hours of straight time in a week. Complainant has not
refuted the agency's calculations with regard to her respective claims.
Complainant also has not refuted the agency's position that her day off
was shifted due to a staff shortage. Accordingly, the AJ's decision to
issue a decision without a hearing was proper and the agency's finding
of no discrimination with regard to claims 3 - 6 was proper.
As for claims 1, 2, and 7, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions and the AJ's finding of no
discrimination is supported by substantial evidence of the record.
The AJ's decision finding no race and sex discrimination with regard
to these claims is supported by substantial evidence. The agency
stated that complainant sought compensation for eight hours of jury
duty on January 18, 2002, when all she did was appear at the court for
fifteen minutes. The agency noted that the jury duty summons issued
to complainant specified that all complainant was supposed to do was
call the court. Complainant was initially paid for six hours of jury
duty she actually did not serve and then she compounded her actions
by seeking an additional two hours through the filing of a grievance.
The agency stated that complainant was issued a notice of removal because
she demonstrated a lack of integrity by her actions.
With regard to the comparison employees, we agree with the AJ that
there was no suspicion of the jury duty claims submitted by several of
the comparatives. As the AJ stated, there was no evidence presented
that two of the comparatives failed to serve on jury duty. Complainant
differed from another comparative who avoided removal by acknowledging his
misdeeds and accepting a last chance agreement from the agency. As for
complainant's Motion to Compel and Request for Subpoena dated August 29,
2006, the AJ appropriately stated at the hearing that complainant had
the opportunity to take a deposition or obtain a statement prior to the
relevant employee's retirement from the agency. The AJ stated that there
was ample opportunity for discovery as the removal occurred in 2002,
and the relevant employee did not retire until the middle of 2006.
As the AJ noted, despite the significant amount of time available to
complainant, neither she, her representative, nor the union questioned
the relevant employee. Based on the record, we find that complainant
has failed to establish that the agency's stated reasons for its actions
in claims 1, 2, and 7 were pretext for discrimination.
As for claim (8), we find that complainant has failed to identify a
discriminatory incident to the AJ or on appeal that occurred within 45
days of her contact with an EEO Counselor on March 7, 2002. Thus, claim
(8) was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
Accordingly, the agency's final action is AFFIRMED.
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
June 19, 2009
__________________
Date
3
2
0120070783
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120070783