0120121358
07-13-2012
Betty L. Garrett, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Betty L. Garrett,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120121358
Hearing No. 470-2011-00111X
Agency No. 4C-400-0087-10
DECISION
Complainant filed a timely appeal from the Agency's January 12, 2012, final order concerning her equal employment opportunity (EEO) complaint. She alleged 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issue presented is whether the decision, finding no discrimination, is supported by the record.
BACKGROUND
Complainant worked as a Windows Clerk at the Agency's Versailles Post Office facility in Versailles, Kentucky. She worked at the Post Office for 18 years. Complainant had prior EEO activity in 2006 and the Postmaster and her supervisor were aware of her EEO activity.
On October 14, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her race (African-American), sex (female), age (49), and reprisal for prior protected EEO activity under Title VII when:
1. On June 16, 2010, Complainant was sent home two hours early;
2. On June 28, 2010, the Postmaster issued Complainant a seven-day suspension;
3. On or around October 14, 2010, the Postmaster and her supervisor issued Complainant a 14-day suspension, to be effective November 8, 2010 unless a grievance was filed; and
4. On November 29, 2010, her supervisor issued Complainant another 14-day suspension, when Complainant did not report to work on November 8, 2010.
The record shows that on June 9, 2010, Complainant was waiting on a customer who needed a passport, when another customer approached who needed a money order. Complainant's supervisor was observing Complainant at the time. The supervisor instructed Complainant to wait on the customer who needed the money order before Complainant completed the passport processing transaction. Complainant did not do as her supervisor instructed and continued working on the passport transaction. On September 18, 2010, Complainant's supervisor issued Complainant a 14-day suspension after the supervisor concluded that Complainant intentionally ignored her instruction to stop working on a passport transaction on June 9, 2010.
The record shows that on June 16, 2010, Complainant's supervisor informed Complainant that due to a staffing shortage, Complainant and others who normally did not work on Saturdays would have to work on Saturdays on a rotating basis. Complainant became upset. The Postmaster called Complainant into his office to discuss the matter. The Postmaster had an "open-door" policy and her discussions with him had not been a problem in the past. The Postmaster told Complainant that she would have to work on Saturdays, notwithstanding her objections to it. The discussion became tense. Complainant asked to leave the Postmaster's Office. The Postmaster told Complainant that she should stay and he told her that if she left, Complainant would be placed on Emergency Placement status. Complainant left.
On June 18, 2010, the Postmaster held a discussion with Complainant, her union representative, and Complainant's supervisor. Complainant did not respond to the Postmaster's questions about the June 16, 2010 incident.
On June 28, 2011, the Postmaster issued Complainant a seven day suspension as a result of the June 16, 2010 incident, which Complainant grieved. The seven-day suspension was reduced to a three-day time-served and four-day paper suspension. On October 13, 2010, after considering her "prior disciplinary record that included a live seven-day suspension," the Postmaster and the supervisor issued Complainant another 14-day suspension.
The supervisor told Complainant that she was to report to duty on November, 8, 2010. On November 8, 2010, Complainant did not report to work because she thought she was supposed to be on suspension. After a call was made to her home, Complainant reported to work 3.24 hours late and was marked "absent without leave" (AWOL) for the late arrival.
Complainant compared the disciplines imposed upon her to what she says the Agency imposed on five Caucasian employees. Two were clerks like Complainant and worked under the same supervisor. One was older and one was younger. The record shows that the Agency had issued discipline to the Caucasian employees in the form of notice or proposed removal, suspensions, or letters of warning to Caucasian employees and male employees of all ages. Some had prior EEO and some did not. None had engaged in the same conduct as Complainant.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on September 20, 2011, and he issued a bench decision on December 31, 2011.
The AJ stated that the fact that Complainant was the only African American female was irrelevant. He acknowledged that she filed a prior complaint in 2006. Although the AJ acknowledged that Complainant had been subjected to a series of suspensions, the AJ found that Complainant failed to establish the elements of her prima facie case of race, sex or age discrimination and retaliation. In so finding, the AJ found that Complainant had not introduced evidence that she was treated less favorably than others who were similarly situated to her.
Then, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its disciplinary actions and that Complainant did not offer evidence to challenge those reasons. The AJ reasoned that Complainant was not contending that she did not engage in the conduct for which the suspensions were issued.
The AJ held a hearing and had the opportunity to consider the demeanor of Complainant and to make credibility determinations. The AJ found that that Complainant became "combative" during the hearing and further found that her testimony failed to offer any credible evidence to meet Complainant's burden of establishing pretext of the Agency's articulated reasons. Based on the evidence that had been presented, the AJ determined that dismissal of the claims was appropriate and that there was no reason to continue the hearing. He stated "For the reasons set forth in the Hearings Transcript dated December 31, 2011, judgment in the above-captioned matter is hereby entered in favor of the Agency." The AJ referred to his decision as a "directed verdict" "granting the Agency's motion" for judgment in its favor.
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.
Complainant did not file a brief or statement in support of her appeal.
The Agency stated, in its brief, that "dismissal of Appellant's claims is warranted because the material facts are not in dispute." The Agency also maintains that the AJ's findings were based on substantial evidence. The Agency asks the Commission to affirm the Agency's decision.
ANALYSIS
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.
In this case, however, the AJ issued a decision without a full hearing after determining that continuation of the hearing was not warranted
Consequently, we must first determine whether it was appropriate for the AJ to issue a decision without a full hearing or to grant judgment to the Agency based 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. See 29 C.F.R. � 1614.109(g). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but to determine whether there are genuine issues for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). At the summary judgment stage, the evidence of the non-moving party must be believed and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. In addition, the record must be adequate and properly developed.
Upon review, the Commission finds that the AJ properly granted summary judgment to the Agency.
First, we find that the record is adequately developed for a final determination. Specifically, we find that the evidentiary record includes documentation of the disciplinary actions that were issued by the Agency, delineated by race, sex, age and prior EEO activity. The record shows that the Agency issued discipline across the board to persons younger and older than Complainant, and to individuals outside of Complainant's protected classes. The record also shows that the individuals to whom Complainant compared herself were not similarly situated because several were in different jobs and under different union rules and the conduct was not the same.
Next, to prove disparate treatment, Complainant must present facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e. that a prohibited consideration was a factor in the adverse employment action. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Complainant may establish reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful in articulating legitimate reasons, the burden shifts back to Complaint to demonstrate by a preponderance of the evidence that the Agency's reasons for its actions were a pretext for discrimination or reprisal. All all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). ; U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983).
For purposes of our analysis under the summary judgment principles, we will assume that Complainant established the elements of her prima facie case. The prima facie inquiry may be bypassed in this case, however, since we find that the Agency provided a specific, clear and individualized explanation for the treatment accorded Complainant. Therefore, we concur in the AJ's finding that the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See Aikens at 460 U.S. at 713-717.
Moreover, the hearing provided Complainant with the opportunity to demonstrate that the Agency's articulated reasons were a pretext for discrimination, but Complainant did not introduce evidence to dispute the Agency's reasons. In this instant case, it is undisputed that Complainant did not comply with an order to remain in the Postmaster's Office. She chose to leave and lost two hours of pay. She was ordered to stop working on a passport and she continued and was given a suspension. She was told to report to work for duty at a specific time and did not report as directed. It is not enough to show that Complainant is the only African-American female or the Agency's actions appear over-zealous, given the fact that Complainant did not have an extensive history of prior disciplinary actions prior to her challenging the Postmaster's requirement that she work on Saturdays.
Further, because the AJ did conduct a partial hearing, he had the opportunity to consider Complainant's credibility. 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, at � VI.B. (November 9, 1999).
After a careful review of the record and mindful that a hearing was conducted, we discern no basis to disturb the AJ's ultimate conclusion. For these reasons, we conclude that the record supports that AJ's ultimate finding of no discrimination.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order.
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 tends 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
July 13, 2012
__________________
Date
2
0120121358
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121358