Concha E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 4, 20160120141857 (E.E.O.C. Feb. 4, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Concha E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120141857 Hearing No. 410-2013-00362X Agency No. 4K300023512 DECISION On April 16, 2014, Complainant filed an appeal from the Agency’s March 7, 2014, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The U.S. Equal Employment Opportunity Commission (EEOC or 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Operations Support Clerk at the Athens Post Office, located in Athens, Georgia. On November 29, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), disability (high blood pressure and anxiety), and reprisal (prior protected EEO activity) when: (1) on July 20, 2012, she was subjected to an Investigative Interview and subsequently given a Seven-Day 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120141857 2 Suspension dated August 1, 2012, for unsatisfactory Work Performance; (2) on unspecified dates to include November 1, 2012, she was treated differently with regard to work assignments and performance standards; (3) on an unspecified date her request for a change in schedule was denied and she was required to provide documentation for sick leave; (4) on unspecified dates she was denied overtime opportunities; (5) on unspecified dates she was subjected to increased surveillance; (6) on December 7, 2012, she was placed on Emergency Placement in an off-duty status; (7) on unspecified dates including December 2012, her request for leave was treated with indifference; and (8) on or around January 14, 2013, she was issued a Notice of Removal. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s October 17, 2013, motion for a decision without a hearing and issued a decision without a hearing on March 3, 2014. 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. AJ’s STATEMENT OF UNDISPTUED FACTS In his decision, the AJ noted the following facts: On August 1, 2012, the Maintenance Manager (S1) (Black) issued Complainant a seven-day suspension for failing to input data in the Electronic Maintenance Activity Reporting and Scheduling (E-MARS) database on July 17, 2012. The suspension was eventually expunged through the grievance process in January 2013, on a time-served basis. A maintenance supervisor issued Complainant a letter of warning (LOW) on May 11, 2011, for twice failing to make the same data input in April 2011. Complainant alleges hostile environment harassment regarding work assignments, scheduling, overtime opportunities, leave and the general conditions of her employment in the second half of 2012. Management provided a legitimate, non-discriminatory explanation for each allegation. The allegations are not specific and the record does not support the assertion that Complainant was treated less favorably than similarly situated comparison employees. On December 7, 2012, S1 put Complainant on an emergency placement in an off-duty status for her fraudulent use of sick leave in August 2012. During a period where Complainant was out on sick leave, she worked at her second job. On December 19, 2012, the Agency's Office of Inspector General issued its official written report recounting Complainant's fraudulent use of Agency sick leave in August 2012. On January 14, 2013, S1 issued a Notice of Removal to Complainant for her fraudulent use of sick leave in August 2012. On September 12, 2013, an arbitrator ruled the removal was 0120141857 3 proper under the terms of the collective bargaining agreement between the Agency and Complainant's union. 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 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both 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 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 0120141857 4 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 agree with the AJ in concluding that Complainant failed to present sufficient evidence in support of her claims. We also agree with the AJ that the alleged harassment was not sufficiently severe or pervasive to establish a hostile work environment. In addition, management officials presented legitimate, non-discriminatory reasons for the various discrete acts which included the LOW and the removal decision and Complainant did not present sufficient evidence of pretext or discriminatory/retaliatory animus on the part of any responsible management official. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision without a hearing, which the Agency has adopted. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments 0120141857 5 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton Carlton M. Hadden, Director Office of Federal Operations February 4, 2016 Date Copy with citationCopy as parenthetical citation