0120111540
12-06-2012
Barbara J. Jackson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Barbara J. Jackson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120111540
Hearing No. 430-2008-00481X
Agency No. 4K290004908
DECISION
On January 26, 2011, Complainant filed an appeal from the Agency's January 14, 2011, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that she was subjected to race and color based discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Route Carrier for the Agency in Winnsboro, South Carolina. On April 28, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and color (Black) when she was issued a Notice of Removal on March 24, 2008.
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. When Complainant did not object, the AJ assigned to the case granted the Agency's March 2, 2009, motion for a decision without a hearing and issued a decision without a hearing on January 4, 2011.
The AJ found the following facts: On March 24, 2008, the Agency issued the Complainant a Notice of Removal which provided four charges supporting the removal order. Supervisor of the Winnsboro Post Office (S1) was the supervisor responsible for seeking the disciplinary action against Complainant. The Postmaster (PM1) concurred with the decision to remove Complainant. The Notice of Removal provided that Complainant's removal was supported by the defects in the Complainant's route count as reflected in her edit book; her failure to provide medical documentation with respect to her absence on February 23, 2008; and that she had adopted a hostile tone in discussing the "dummy" card.
The AJ found that Complainant was responsible for noting the status of the addresses that were listed for delivery on her route. Agency policy required the carriers to make additions to and deletions from their route book as changes occur in the route. Complainant transferred from Route 7 to Route 5 in January of 2008. She was replaced by a co-worker (CW1). However, when CW1 compared the actual deliveries with those that were listed in the route book that Complainant had prepared, he found that she had listed sixty-eight addresses that should not have been included. On February 15, 2008, he complained to management that he had been misled as to the size of the route when he bid on it and was now faced with the possibility of a pay cut. Management investigated his allegation and found that he was correct. The findings of local management were confirmed by Operations Support, which conducted its own review.
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for removing Complainant. The AJ found that S1 stated that "In her own handwriting, [Complainant] provided a list of addresses to [her substitute] that did not receive mail and yet continued to be listed as active in her edit book." The AJ found that Complainant listed thirteen locations as "no mail." The AJ noted that Complainant admitted to listing addresses in her route book as active even when the customer had a post office box that all of their mail was delivered to, despite the Agency's policy prohibiting such practices. Complainant asserted that she was not aware of the policy. S1 further stated that Complainant listed addresses as active in locations where no mailbox could be found, addresses where vegetation was growing through the walls and businesses that had always received their mail at a post office box. The Agency listed 68 addresses that were incorrectly listed by Complainant and has listed the reasons why the Agency cited them as incorrectly listed, i.e. "vacant", "no house", "no box" and "No Delv [delivery] PO Box." Further, the Agency asserted that Complainant had added eighteen new addresses during her first month on Route 5, which was located in an area that had little population growth. Management inspected the new addresses and found that the Complainant was listing addresses that were uninhabitable, addresses that did not have a mailbox and that she counted addresses that shared a mailbox as two addresses.
The AJ found that Complainant failed to demonstrate that the Agency's proffered reasons were a pretext for discrimination. Specifically, the AJ found that Complainant failed to challenge the Agency's proffered reasons. Complainant merely stated that "I have counted the deliveries on my route to the best of my ability." The AJ accepted as true "Complainant's assertion that she did not intentionally misstate the stops on her route." Further, the AJ noted that during the time her route was being investigated, Complainant had difficulty with S1 and PM1.
Specifically, on February 22, 2008, S1 told the Complainant to report for work on Saturday, February 23, 2008, which was supposed to be the Complainant's day off. The next morning, the Complainant did not report as scheduled for her shift starting at 7:30 A.M., and her route was delivered by S1, PM1, and two additional postal workers. When Complainant returned to work on February 25, 2008, S1 and PM1 confronted her and asked that she explain her absence from two days before. PM1 instructed Complainant to provide medical documentation explaining her unexpected absence. Complainant produced a handwritten note on February 29, 2008, explaining that, on February 23, 2008, she had had a headache and felt nauseated as a side-effect from medication she was on, but had not gone to a doctor. She did not produce a doctor's note until April 1, 2008, the week after receiving the Notice of Removal.
The AJ found that when Complainant missed work on February 23, 2008, her route was "pivoted", which means that it was distributed among several individual. S1 prepared a "dummy" timecard for the route for that date. The Agency asserted that this was standard policy to use a "dummy" card. The AJ found that on March 1, 2008, Complainant confronted S1 and PM1 over the use of the term "dummy" and the interaction became heated. S1 indicated that Complainant screamed at her and PM1 in a hostile tone. The AJ found that PM1 described the incident in similar terms.
The AJ found that in Complainant's response to the Notice of Removal, she did not contradict any of these charges, except to say that she was "upset" not "angry" on the date in question. She asserted that the incident was an "escalation of their [management's] hurtful and hateful" demeanor. Complainant stated that the use of the term "dummy" was "degrading", "repulsive" and "deplorably disrespectful and ugly."
The AJ found that Complainant failed to proffer any evidence to show that the Agency's proffered reasons for issuing the Notice of Removal were not worthy of credence. The AJ determined that Complainant failed to establish that the Agency's reasons were a pretext for discrimination. Ultimately, the AJ found that Complainant failed to demonstrate that she was discriminated against as alleged.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates statements previously made in the record. Specifically, Complainant contends that S1 was responsible for the routes and accompanied her during the evaluation of her route in the past. Complainant asserts generally that if her route was found to have errors, other carriers must have had similar errors but were not penalized. Further, Complainant argues that she submitted documentation to support her absence, namely her handwritten note explaining her absence since she did not seek medical attention. Finally, Complainant argues that the word "dummy" should not be used on timecards and the Agency should revisit the policy to do so.
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, at 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. 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).
We find that after a careful review of the record, the AJ appropriately issued a decision without a hearing. We find that record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding.
Turning to Complainant's allegations, we note that 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). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
We find, assuming arguendo that Complainant established a prima facie case of race and color discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Notice of Removal was substantiated by the uncontroverted evidence in the record. The evidence showed that Complainant's route was not accurately described by Complainant in her edit book; she did not provide appropriate documentation for her absence; and she had a heated exchange with S1 and PM1 regarding the use of term "dummy" written on her time card.
We find that Complainant has failed to provide any evidence to demonstrate that the Agency's proffered reasons were a pretext for race or color discrimination. Complainant has failed to show that the Agency's articulated reasons were not worthy of credence. Further, nothing in the record shows that the Agency was motivated by discriminatory animus. Accordingly, we find that Complainant failed to show that she was discriminated against as she alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 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 (Z0610)
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
____12/6/12______________
Date
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0120111540
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111540