0120080638
11-17-2009
Connie S. Ellison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Connie S. Ellison,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal Nos. 0120073973, 0120080638
Hearing Nos. 530-2006-00194X, 530-2007-00177X
Agency Nos. 4C-250-0009-06, 4C-250-0053-06
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeals from the agency's August 25, 2007, and an undated1 final agency
order concerning her equal employment opportunity (EEO) complaints
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. Upon review, the Commission finds that the complaints herein
are like and related; therefore, the two complaints listed above have
been consolidated. See EEOC Regulation 29 C.F.R. � 1614.606.
Complainant alleged that the agency discriminated against her on the
basis of reprisal for prior protected EEO activity when:
EEOC Case No. 0120073973
1. On October 7, 2005, she was not paid for pay period 20, year
2005;
2. On October 21, 2005, her work hours were reduced;
3. On November 3, 2005, her paycheck for pay period 22, year 2005,
was incorrect; and
4. On November 28, 2005, she became aware that for pay period 21,
year 2005, she was only paid for twelve hours instead of the thirteen
hours guaranteed.
EEOC Case No. 0120080636
5. Complainant alleged that she was discriminated against based on
retaliation (prior EEO activity) when, from about May 3, 2006, she was
subjected to harassment and a hostile work environment, specifically
with regard to a Letter of Demand for payment, return to duty, work
assignments, medical restrictions, training and accommodation.
0120073973
The record reveals that complainant was a Limited Duty part-time Rural
Carrier Associate, at the Spencer, West Virginia Post Office. She was
injured on the job and, as a result of the rules governing federal
worker's compensation she was limited to the average weekly hours that
she had worked the last six months. Initially, it was guaranteed
that complainant would be paid for thirteen hours of work per week.
Complainant asserts that she was either not paid or paid the wrong amount
for the hours that she worked. She contends that the Postmaster did not
take her concerns regarding the non-payment seriously and maintains that
there was an unreasonable delay in correcting the matter. Complainant
asserts that the reduction of her hours and the non-payment of her wages
were in retaliation for her prior EEO activity.
0120080636
In complainant's second case, the record reflects that she was issued a
Letter of Demand dated May 22, 2006, which indicated that she had received
a salary overpayment in Pay Period 22/2005 for fifty hours in Week 1,
and forty-nine hours in Week 2 for pay Period 20/2005. The Letter was
issued from the Accounting Service Center (ASC) in Eagan, Minnesota.
The ASC determined that complainant had been paid twice for the work
that she had performed in pay period 20. ASC determined that $1,115.38
represented the amount of overpayment.2 Complainant also indicated
that on June 20, 2006, she received a letter asking her to submit updated
medical documentation. She maintains that the letter indicated that
the agency had not received any medical documentation since March 2006.
Complainant indicated that she called the Department of Labor and was
told that her medical documentation was up to date; nonetheless, she
submitted the requested documentation to the agency. Complainant also
contends that she was called several times by her supervisor regarding
complainant's return to work; was asked what she needed in order to
return; was told where she would be assigned; and was asked what her
restrictions were in the event that she returned to work. The agency
indicated that this was in response to OWCP requests.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). In case no. 0120073973, the AJ
issued a decision without a hearing finding no discrimination. The AJ
also ruled on the agency's partial acceptance/partial dismiss of the
issues in complainant's formal EEO complaint.3 The AJ found that the
agency's partial dismissal of complainant's issues for failure to state
a claim was correct as complainant had not shown that she was aggrieved
by these actions. The AJ then determined that, assuming arguendo that
complainant established a prima facie case of discrimination4 the agency
had articulated legitimate nondiscriminatory reason for its actions. The
agency argued that with respect to issue (1), complainant was not paid
due to a computer error. The agency indicated that this action was not
done intentionally or maliciously and contends that complainant was not
the only one who was affected by the computer error. The agency asserts
that with respect to issue (2), complainant's work hours were reduced
from 40 hours a week to thirteen hours a week after an audit showed
that the hours for that facility were over the amount that was allowed.
An investigation was conducted and it was discovered that the Postmaster
had been supplementing complainant's hours with the Postmaster's work.
The Postmaster was not aware that complainant was limited only to the
thirteen hours of work guaranteed by the DOL and once the supervisor
learned of this requirement, complainant's hours were reduced.
With regard to issue (3), wherein complainant maintained that her
paycheck was short by $646.74 and that management acted indifferent
about correcting the error, the agency indicated that computer error
was again responsible for the incorrect paycheck for pay period 22.
Complainant's supervisor indicated that she simply enters the number
of hours that each employee works into the computer. She acknowledges
that the computer has a problem identifying complainant because she
is on limited duty, so she does not have a position/job assignment in
the computer. The supervisor explained that the computer has a hard
time finding complainant and this caused the computer "glitch."
Regarding issue (4), the agency explained that complainant was absent
from work because of flooding, so she did not work the three hours that
she was guaranteed for that day. The agency maintains that it explained
to complainant that if she wanted to be paid for the time that she did not
work, she was required to fill out form CA-7 regarding the missing hours.
The agency maintains that complainant did not fill out the required forms.
The AJ found that complainant failed to demonstrate that the agency's
nondiscriminatory reasons were pretext for discrimination.
In case no. 0120080636 (issue 5), the AJ also issued a decision without a
hearing, finding no discrimination. The AJ found that complainant failed
to establish a prima facie case of retaliation and/or harassment regarding
the agency's issuance of the Letter of Demand because she admitted in her
deposition that she had received the overpayment and that, as of the date
of the deposition, she had not returned the uncashed overpayment check
to the agency. Further, the AJ determined that complainant failed to
establish a prima facie case of reprisal when she was asked to provide
updated medical information. The AJ found that she was not aggrieved by
this incident. Finally, with respect to the rest of complainant's issues,
the AJ found that complainant failed to state a claim because these claims
concerned complainant's dissatisfaction with the agency's administration
and implementation of OWCP benefits. The AJ found that complainant was
attempting to lodge a collateral attack on the OWCP process and that
the proper forum to raise her challenges to these actions was with OWCP
itself. Lastly, the AJ found that, when considering these claims as a
whole, and viewing the evidence in the light favorable to complainant,
she had not shown that these incidents were so severe or pervasive as
to constitute harassment/hostile work environment.
On appeal, wherein complainant consolidated her contentions regarding both
cases, she maintains that the agency did not properly word the issues
involved in her complaint and, as a result, wrongly dismissed some of
the issues. Complainant contends that she has repeatedly emphasized that
this case consists of a pattern and practice of retaliation manifesting
itself in ongoing harassment and founded upon her indirect and direct
participation in the EEO process. Complainant contends that the AJ
erred when he found that she had failed to establish a prima facie
case of reprisal because of the time between the prior EEO activity
and this incident. Complainant argues that because she had a hearing
approaching on another matter, these events could be attributed to
spiteful retaliation. The agency requests that the findings of no
discrimination be affirmed in each case.
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without
a hearing on this record. The Commission's regulations allow an AJ to
issue a decision without a hearing when s/he finds that there are no
genuine issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure 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). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003). We find that
the AJ's determination to issue decisions without a hearing (summary
judgment) was appropriate because no genuine issues of material facts
exist to be resolved at a hearing.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final orders
in both cases. The Commission finds that, with respect to case number
0120073973, the AJ found that even if he assumed for the purpose of
analysis that complainant established a prima facie case of reprisal,
the agency had articulated legitimate nondiscriminatory reasons for its
actions, as was addressed above. The AJ also determined that complainant
failed to show that the stated reasons were pretext for discrimination.
The Commission agrees that complainant has not shown that the agency's
actions were pretext for discrimination. The record reveals that due to
complainant's status as a limited-duty employee, the computer system did
not work properly in computing the hours and payment owed to complainant.
The Commission finds that the record shows that other employees were
also subject to this error. Further, we find that there is no evidence
in the record which demonstrates that these actions occurred as a result
of complainant's prior EEO activity.5 Additionally, we agree that the
issues that were dismissed by the agency were correctly dismissed for
failure to state a claim because complainant failed to demonstrate how
she was aggrieved.
Finally, with respect to case no. 0120080636, the Commission agrees that
complainant has not demonstrated that she was subjected to a hostile work
environment. Specifically, we find that complainant failed to show that
the incidents complained of, even when considered as a whole, including
those in claim 0120073973, were so severe or pervasive as to establish
a hostile work environment. We find the record shows that the Letter
of Demand was correctly forwarded to complainant as she was overpaid
for that time period. Further, we find the inquiries made regarding
medical documentation and other inquiries made in the attempt to return
complainant to work were made in accordance with OWCP requirements and
were not made in order to harass the complainant. In total, we find
that complainant has not submitted any evidence in either case which
demonstrates that discriminatory animus was considered with regard
to any of these incidents. Accordingly, we find the Administrative
Judge's issuance of a decision without a hearing in both of these cases
was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred.
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
November 17, 2009
Date
1 Complainant acknowledges receiving the Notice of Final Action on
November 12, 2007.
2 As of October 13, 2006, complainant had not cashed this check but
she still had it in her possession.
3 Complainant also alleged in her original complaint that she was
discriminated against based on retaliation when (2) from October 7,
2005, to December 16, 2005, the Postmaster informed her of every call she
received that pertained to complainant's EEOC case; (4) on October 24,
2005, she waited three hours for a copy of an email concerning changes
in her position; (7) on November 28, 2005, her request for a copy of
her Form CA-1 was denied: (8) on unspecified dates the Postmaster did
not provide her witnesses with the location and time of her EEOC hearing
until December 15, 2005; and (9) on December 15, 2005, the Postmaster gave
written instructions to witnesses for her EEOC hearing regarding travel
to her hearing and instructed them to report to work after the hearing.
Additionally, we note that complainant failed to respond in a timely
manner to the AJ's Order regarding any dispute of the agency's partial
dismissal of the issues of the formal complaint, and the AJ therefore
deemed these issues waived.
4 The AJ found that complainant failed to establish a prima facie case
of reprisal because the required nexus did not exist given that a year
and a half had passed between complainant's prior EEO activity and the
current incidents.
5 The Commission acknowledges that not receiving a paycheck and
receiving the incorrect amount of pay can be devastating to person's
financial security. Therefore, the Commission strongly advises the
agency to resolve the problem.
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0120073973
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073973