0120092357
10-26-2009
Beverly L. Turner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Beverly L. Turner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092357
Hearing No. 480-2007-00318X
Agency No. 1F-904-0079-06
DECISION
Complainant filed an appeal from the agency's final order concerning
her equal employment opportunity (EEO) complaint claiming 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked as a Parcel Post
Distribution Clerk in LIM Operations at the Los Angeles Bulk Mail Center.
On September 15, 2006, an announcement was made over the public address
system regarding overtime for all parcel post keyers, with the exception
of those in LIM, for the following day. Complainant reported to work,
on September 16, 2006, her day off, expecting to work overtime hours.
Instead, her acting supervisor explained that management had not called
overtime for LIM Operations and instructed her to clock out. According to
the agency, complainant refused to leave and started yelling "I am not
going, no damn where." When she rejected further requests to leave,
she was placed off the clock and escorted off the premises. Thereafter,
on September 29, 2006, complainant was issued a 14-day suspension.
Believing that the incident was discriminatory, complainant contacted
the EEO office. Informal efforts to resolve complainant's concerns were
unsuccessful. On December 11, 2006, complainant filed the instant formal
complaint based on race, color, sex, age, disability, and reprisal.
The agency framed the claims as follows:
(1) On September 16, 2006, complainant was placed off the clock after
reporting for overtime on her day off; and,
(2) On September 29, 2006, complainant was issued a 14-day notice of
suspension for failure to follow instructions.
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. Over the complainant's objections, the AJ assigned
to the case granted the agency's July 11, 2007 motion for a decision
without a hearing. On March 31, 2009, the AJ issued a decision finding
no discrimination.
The AJ found that complainant failed to establish a prima facie case
of race, color, sex, age or reprisal discrimination. Regarding the
basis of disability, the AJ found that complainant did not show that
was substantially limited in a major life activity.1
Finally, even assuming that complainant had established a prima facie case
for any of her protected basis, the AJ found that the agency presented
legitimate, non-discriminatory reasons for its actions. According to
management, complainant was placed "off the clock" because overtime had
not been called for LIM employees. Overtime was not available for LIM
employees because the volume of work for that area did not warrant the
additional hours. When complainant arrived at work on September 16,
2006, she was reporting on her day off. Consequently, she was asked
to leave. The suspension was issued due to complainant's refusal to
leave and hostility that she showed. Specifically, the notice described
complainant "shouting and screaming to call the Postal Inspectors and
the Bell Police" to settle the matter. Eventually, complainant had to
be escorted off the premises by Postal Police.
The AJ found that complainant failed to show the agency's reasons were
pretext for discrimination. Consequently, the AJ issued a decision
finding no discrimination. The agency issued a decision implementing
the AJ's decision. Complainant filed the instant appeal.
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 EEOC Management Directive 110, 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.
The Commission finds that the AJ properly granted the agency's motion
for summary judgment. There is no genuine issue of material fact.
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). He
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).
Complainant's supervisor attested that when complainant, and another
employee, reported to her on September 16, 2006, she told them that
overtime was not called for their group. She instructed them to clock out
and leave. According to the supervisor, they refused to leave, so higher
management instructed her to take complainant and the other employee off
the clock. The supervisor attested that complainant yelled at her, "I
am not going, no damn where" and screamed to call the Postal Police.
The manager attested that he received a phone call apprising him of
the situation, wherein complainant and another employee were refusing
to leave. When the manager walked out of his office, complainant
entered the Operations Office "hurling accusations and insisting that I
am not going to bully her around. . . ." The manager contends he asked
complainant to lower her voice, but she failed to do so and continued
her disrespectful remarks. Complainant insisted that she was not going
to leave. When complainant "continued with her belligerent disregard
for management's instruction," Postal Police were called and escorted
her off the premises.
On appeal, complainant attempts to challenge management's credibility
by stating that she was asked by an employee to return for lunch, to
celebrate an anniversary. Complainant argues that she would not have
been permitted to later return if she had been so violent.
The Commission, however, is not persuaded. The record supports the
agency's reasons for denying complainant the overtime work, and for
issuing her discipline. Complainant has not shown any nexus between her
protected bases and the agency's actions. Further, there is no evidence
of pretext.
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
finding of no discrimination.
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 26, 2009
__________________
Date
1 The Commission presumes, for purposes of analysis only and without so
finding, that complainant is an individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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