0120113056
02-21-2013
Birdie A. Herrera, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Birdie A. Herrera,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120113056
Hearing No. 550-2010-00281X
Agency No. 4F-945-0178-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 3, 2011 final action concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Sales-Service Distribution Associate, PS-06, at the Agency's St. James Park Station in San Jose, California.
On November 20, 2009, Complainant filed a formal EEO complaint claiming that she was subjected to harassment and a hostile work environment on the bases of race (Hispanic) and in reprisal for prior EEO activity when:
1. on June 26, 2009, she became aware that she was charged Absent Without Leave (AWOL) on June 6, 2009, and was given an investigation;
2. on or around June 26, 2009, she was notified by letter that her Family Medical Leave Act (FMLA) leave from 2008 would not be corrected;
3. on September 10, 2009, she was given an investigation and on September 25, 2009, she was given a Letter of Warning;
4. on October 1, 2009, she was given an investigative interview;
5. on October 9, 2009, she was given an investigative interview;
6. she was not paid for approximately .67 hours;
7. on November 5, 2009, she was given an investigative interview;
8. on November 5, 2009, she was told that she was AWOL and was not paid .10 hours of sick leave;
9. on November 6, 2009, she was given an investigative interview;
10. on or around November 12, 2009, she was hit on the head by her supervisor, and on November 13, 2009, her supervisor threatened to hit her again;
11. after reporting the November 12 and 13, 2009 incidents, she was placed on administrative leave and reassigned to another station on November 16, 2009; and
12. on January 15, 2010, she was ordered to return to her station and she became aware that the supervisor had not been similarly reassigned.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On April 26, 2011, the AJ issued a decision by summary judgment in favor of the Agency.
The AJ noted that in regard to Complainant's AWOL charge, all employees, including Complainant, were charged with AWOL whenever time reporting clock-in documents confirmed that they were tardy without an excuse. The AJ noted that in Complainant's case, Complainant was tardy on June 6, 2009 and November 5, 2009. After examining the clock-in records, Complainant's front line supervisor (supervisor) charged Complainant with AWOL for the fractional time involved. The AJ noted that the supervisor she stated that the Agency policy required that, unless excused, employees' absences would be considered AWOL and that absent employees would not be paid for the lost time.
In her affidavit, the supervisor stated that on June 6, 2009, Complainant was charged with AWOL because she did not report to work on time. Specifically, the supervisor stated that Complainant was scheduled to begin her tour "at 05:00 but she clocked in at 05:06. She was late 6 clicks and there was no congestion at the clock, therefore it's considered AWOL. In addition to the 6 clicks of AWOL, the complainant also received 6 clicks of Annual Leave for her late return from lunch." The supervisor further stated that she does not recall conducting an interview with Complainant on the subject day.
The AJ noted that in her affidavit, the Manager, Customer Service (Manager) stated that according to the Time and Attendance (TACS) records, Complainant was paid 8 hours of sick leave for November 3, 2009, and on November 5, 2009, Complainant "was given AWOL for .15 clicks, and provided sick leave for the remainder of the day." The AJ further noted that the Manager admonished Complainant that it was her responsibility to report to work on time and to obtain leave excuses in a timely manner. The AJ noted that Complainant refused to meet with the Manager to discuss the reasons for her loss of pay on account of her unexcused failure to report to work on time and/or to leave work with an excuse prior to the completion of her work day.
With respect to Complainant's allegation that her FMLA leave was improperly handled, the AJ noted that Complainant was not entitled to FMLA leave during the relevant period. In her response to the Agency's Motion for Decision Without Hearing, Complainant asserted that this FMLA issues was related to a March-April 2008 incident which may have been the subject of a previous complaint.
Further, the AJ noted that Complainant alleged that she was given a number of investigative interviews for misconduct and/or performance issues during the relevant period. The AJ noted that the Supervisor Customer Service stated that on September 10, 2009, she conducted an investigative interview with Complainant and her shop steward concerning an incident that occurred on September 3, 2009. On September 25, 2009, the Supervisor Customer Service issued Complainant a Letter of Warning for Failure to Follow Instructions and Unacceptable work performance. In the September 25, 2009 Letter of Warning, the Supervisor Customer Service stated that on September 3, 2009, Complainant did not distribute all the first class mail.
The record reflects that during the investigative interview, the Supervisor Customer Service asked Complainant if she was done distributing and put down all the first class mail from hot case by 11:40 a.m. in which Complainant "replied 'yes.' Then you were asked an auditor came and found about 30 pc of first class mail if you know anything about it? You replied 'no I do not know anything about it,.' You were the only person in the distribution area that day."
The Supervisor Customer Service stated that Complainant was in violation of Section 665.15 "Obedience to Orders" of the Employee and Labor Relations Manual. Furthermore, the Supervisor Customer Service stated that she did not discriminate against Complainant based on her race and prior protected activity.
The AJ noted that Complainant's supervisor stated that on October 1, 2009, she gave Complainant an investigative interview for insubordination, failure to follow instructions and not color coding mails. The supervisor stated, however, she does not recall conducting investigative interviews on October 9, 2009 and November 5 and 6, 2009.
Further, the supervisor stated that while she has no knowledge why Complainant was not paid approximately .67 hours on November 5, 2009, Complainant was charged AWOL for the first 15 hundredths of her tour on November 5, 2009. Specifically, the supervisor stated that on November 5, 2009, Complainant called in sick at "0515, Complainant was scheduled to begin tour at 0500."
Complainant also claimed that on November 12, 2009, she was hit on the head by her supervisor and on November 13, 2009, the supervisor threatened to hit her again. The AJ found that when Complainant reported that she was hit on the head by her supervisor and that she was later threatened, the Agency immediately investigated the matter. The AJ noted that pending the investigation, Complainant was placed on administrative leave until she could be reassigned to a different facility. The AJ noted that following the investigation, which included the examination of witnesses, the Inspection Service concluded that there was no evidence indicating that the November 12, 2009 incident was intentional or that it constituted anything other than an accident, a conclusion which Complainant conceded to the Postal Inspector in charge of the investigation. Moreover, the AJ noted that the supervisor was not reassigned pending the investigation.
The AJ found that it was not unreasonable that the Agency removed Complainant from her workplace pending the conclusion of the investigation. The AJ further stated while Complainant asserted that she would have handled the investigation differently, there was no evidence in the record that the investigation was discriminatory or deficient in any way and other than speculation, Complainant offered no such evidence.
The AJ noted that the supervisor acknowledged "the physical contact made on November 12, 2009, by myself and the complainant was not done intentionally or with malice." The supervisor further stated that she did not subject Complainant to harassment.
In his decision, the AJ concluded that Complainant failed to establish any connection between the alleged harassment and her national origin or prior protected activity. Moreover, the AJ determined that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
After carefully considering Complainant's arguments on appeal, we conclude that she has failed to establish that the investigative record was inadequate or that there remain issues of material fact that require resolution through a hearing. Therefore, we find that the AJ's decision to render a decision without a hearing was not in error. We further conclude that the AJ's decision properly summarized the relevant undisputed facts and referenced the appropriate regulations, policies, and laws. Complainant did not present persuasive evidence that the Agency's actions were motivated by discriminatory animus toward Complainant's race and prior protected activity. We discern no basis to disturb the AJ's decision finding no discrimination.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.
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
February 21, 2013
__________________
Date
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0120113056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113056
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