0120112077
05-31-2012
Celeste L. Guice, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Celeste L. Guice,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120112077
Hearing Nos. 510-2010-00265X and 510-2009-00289X
Agency Nos. 1H-336-0088-09 and 1H-336-0041-09
DECISION
Complainant filed an appeal from the Agency's January 21, 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. For the following reasons, the Commission AFFIRMS the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Tampa Logistics and Distribution Center facility in Tampa, Florida. On April 2, 2009, Complainant filed an EEO complaint (Agency case No. lH-336-0041-09) alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On February 3, 2009, Complainant was given an Investigative Interview and subsequently on February 15, 2009, she received a Notice of 14-Day Suspension;
2. On March 7 and 10, 2009, Complainant's supervisor, S1, made inappropriate comments to the union about Complainant's performance and notification of a safety hazard.
Complainant subsequently filed a second complaint on October 22, 2009 (Agency case No. lH-336-0088-09), alleging discrimination on the bases of race (African-American), color (black), sex (female), and in retaliation (prior EEO activity) when:
3. On May 28, 2009, Complainant received a letter disallowing her bid request;
4. On October 23, 2009, Complainant received a Notice of a Fourteen Day Suspension which she did not serve until March 30, 2010;
5. Complainant was not paid on December 18, 2009; and
6. Complainant was issued a Letter of Warning dated April 5, 2010.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the 2report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's December 13, 2009 Motion for Summary Judgment (motion for a decision without a hearing). The AJ issued a decision without a hearing on January 13, 2011.
As a preliminary matter, the AJ explained that Complainant sought to amend her complaint (Agency case number lH-336-0088-09) with a prior pending complaint (lH-336-0041-09). By order dated May 3, 2010, the AJ consolidated the accepted issues of the two complaints for hearing. See AJ's May 3, 2010 Order (1) Denying Motion for Declaratory Judgment; and (2) Consolidating the Complaints. ROA at 746. By that time, the Agency had dismissed claim (2) (inappropriate comments/safety hazard) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Agency's Partial Acceptance/Partial Dismissal of EEO Formal Complaint, April 9, 2009 at (2).
By order dated September 28, 2010, the AJ severed the previously consolidated complaints finding that from Agency case number 1H-336-0041-09, claim (1) (14-day suspension) had been resolved by a settlement agreement. AJ's September 28, 2010 Order Severing Consolidated Complaints; Id. at 569. Therein, the AJ also granted Complainant's motion to amend her complaint (lH-336-0088-09) to include claims (5) and (6). Accordingly, only claims (3) - (6) were before the AJ at the time of the rendering of the AJ's Decision from which the instant appeal arises.
In his Decision, the AJ found the material facts were not in dispute and that no hearing was necessary to resolve any remaining issues of fact. Drawing all inferences in Complainant's favor, the AJ found that Complainant failed to show that she was subjected to discrimination on any basis.
Specifically, with respect to claim (3), the AJ observed that Complainant had successfully bid for a position as a Group Leader Mail Handler position and that Complainant was notified of her successful bid on April 13, 2009. As an employee with a temporary disability, Complainant, the AJ noted, was required to submit medical documentation within five days of the award, sufficient to show that she would be able to perform the position's functions within six months of the date she was awarded the bid position. Complainant's documentation did not satisfy the Agency's requirements until May 11, 2009, the AJ found. Accordingly, Complainant received a notice on May 28, 2009, explaining that her new bid position was disallowed. The AJ found that Complainant did not identify any similarly situated employees not in her protected groups who were awarded bid positions, did not submit sufficient medical documentation in a timely fashion, and were allowed to keep their awarded bid positions. On the contrary, the AJ found that the employees Complainant identified as receiving their bid positions had supplied the required documentation to the Agency. E1, for instance, supplied the requested information within seven days after he was awarded a bid position.3 E2 supplied the required information before he was awarded a bid position.4
Regarding claim (4), the AJ found the undisputed evidence showed that the Agency's policy regarding personal audio listening headsets (also known as earbuds) prohibited the use of headsets that included an attached microphone. The AJ found no dispute that Complainant was wearing earbuds (an audio headset) with a microphone attached when she was confronted by an Agency Official. Further, Complainant does not dispute that after removing the headset as requested, Complainant was again observed wearing a headset later. The AJ found no dispute that Complainant received notice that she would be suspended for 14 days for failing to follow instructions by her supervisor, S1. The AJ considered that Complainant alleged she was (on the second occasion) wearing a headset that did not have a microphone attached. However, the AJ found no dispute that Complainant failed to disclose that fact (taking Complainant's assertion as true that she indeed had a second headset with her at the time) to S1 at the time she was interviewed and before she received the discipline. Accordingly, the AJ found no evidence that Complainant was treated differently than any other employee under the same or similar circumstances.
Regarding claim (5), the AJ found no dispute that Complainant was not allowed to return to work on December 18, 2009 (and thus not paid), following an extended absence for medical reasons because she did not submit the necessary medical documentation clearing her to return to work. The AJ considered Complainant's allegation that S1 was not a doctor and thus unable to ascertain whether the note Complainant presented upon her return to work was sufficient under the circumstances. The AJ found no dispute that Complainant did not provide the required documentation and that the Agency's reasons for denying her work that day were justified. The AJ found no evidence that Complainant was treated any differently than any other employee under the same or similar circumstances.
With respect to claim (6), the AJ found no dispute that Complainant incurred seven unscheduled absences in four months that caused the Agency to issue Complainant a letter of warning regarding her obligation to be regular in attendance. The AJ further found no evidence to support Complainant's contention that other employees had similar records of unscheduled absences but did not receive any discipline.
The AJ considered Complainant's claims based on reprisal and found the undisputed evidence showed that Complainant did not comply with the Agency's policies related to each of her claims. The AJ found no evidence that other employees were not subject to the same policies and rules. Accordingly, the AJ found that Complainant did not show that she was subjected to discrimination on any basis 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.
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, 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).
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 he or 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In the instant case, as a preliminary matter, we find the AJ properly allowed Complainant to amend her complaint to include claims (5) and (6), and properly severed Complainant's claim regarding a 14-day suspension dated February 10, 2009 (claim (1) of 1H-336-0041-09), in light of the settlement agreement dated July 30, 2010 (signed by Complainant on August 10, 2010). We decline to disturb the AJ's rulings regarding Complainant's previous motions to amend the complaint to add unrelated claims raised in the course of the processing of Complainant's complaint after the assignment of the AJ to the complaint. We find Complainant was properly instructed by the AJ regarding the appropriate manner in which to raise any additional claims. See AJ's September 9, 2010, Order Denying Complainant's Motion to Amend Motion filed September 9, 2010 and Granting Amendment of a Prior Claim; Record on Appeal (ROA) at 236. The Commission finds that the Agency's dismissal of claim (2) (inappropriate comments/safety hazard) of Agency case number lH-336-0041-09 was proper. That claim was dismissed by the Agency by letter dated April 9, 2009, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and we concur with the dismissal on the grounds stated by the Agency.
We find that Complainant failed to identify any similarly situated employees not in her protected categories who were treated differently than she was treated. We therefore find that Complainant failed to establish a prima facie case of discrimination on her alleged bases with respect to her complaint.
Regarding reprisal, we find that Complainant established a prima facie case of reprisal discrimination in that she participated in the EEO process and that the Agency officials identified in Complainant's complaint were aware of her protected activity. We further find that Complainant was subjected to adverse actions and that those actions occurred in close proximity to Complainant's protected activity. We find, however, that the undisputed evidence supports the Agency's articulated legitimate, non-discriminatory reasons for its actions. We find Complainant has not shown the Agency's reasons to be false or untrue.
Specifically, the evidence shows that Complainant was untimely in submitting enough medical documentation to satisfy the Agency's policy that she provide proof that she would be able to perform the essential functions of the bid position she was awarded in April 2009. Further, Complainant does not deny that she was wearing a headset with a microphone, and that while she may have been unaware of the Agency's policy at the time she was found in violation, that policy was promulgated to employees and she was subject to an investigation and discipline for violating that policy.
We also find no dispute that Complainant incurred the identified unscheduled absences in a short period of time that led the Agency to issue her a letter of warning regarding her attendance.
Accordingly, we find the AJ properly issued his decision without a hearing and that Complainant failed to present evidence that discrimination motivated the Agency's actions as alleged. We note that a series of interim actions through alternative processes, primarily the Agency's negotiated grievance process, afforded Complainant considerable, if not complete relief from the actions at issue in the instant amended complaint. Complainant urges the Commission to consider that where the Agency's actions have been deemed a violation of the collective bargaining agreement or other internal regulations, so too should the Commission find that discrimination occurred. The Commission rejects that argument. A violation of a collective bargaining agreement or other agency internal regulations does not necessarily indicate a violation of the laws enforced by the Commission.
CONCLUSION
We AFFIRM the Agency's Final Decision.
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
May 31, 2012
__________________
Date
1 The record indicates that Complainant was ultimately paid for the time she lost due to the suspension described in claim (4) and that the letter of warning identified in claim (6) was later expunged from her records.
2 The record indicates that Complainant entered into a settlement agreement on August 10, 2010, regarding claim (1).
3 The undisputed evidence shows that Complainant supplied her initial medical documentation within seven days as well. However, we find, as did the Agency, that documentation did not clearly state that Complainant could perform the position's functions within six months.
4 The record indicates that Complainant later received the position she was awarded after submitting the dispute to an arbitrator.
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0120112077
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112077