Danielle T. Colvin, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionNov 13, 2009
0120073933 (E.E.O.C. Nov. 13, 2009)

0120073933

11-13-2009

Danielle T. Colvin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.


Danielle T. Colvin,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120073933

Hearing No. 420-2007-00093X

Agency No. 1H-361-0011-06

DECISION

On September 12, 2007, complainant filed an appeal from the agency's

August 9, 2007 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. The Commission accepts the appeal, pursuant to

29 C.F.R. � 1614.405(a). For the following reasons, the Commission

affirms the agency's final order.

ISSUES PRESENTED

The issues presented are:

1. whether the agency erred in dismissing complainant's allegations

that union officials discriminated against complainant on the basis of

sex;

2. whether the EEOC Administrative Judge erred in denying

complainant's request to amend her complaint to include an allegation

of discrimination on the basis of reprisal; and

3. whether the EEOC Administrative Judge erred in issuing a decision

without a hearing, finding no discrimination on the basis of sex.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a part-time Flexible Clerk assigned to the Small Parcel Bundle Sorter

(SPBS) at the agency's Montgomery, Alabama Processing and Distribution

Center.

On the night of July 8, 2006, complainant was initially assigned to the

SPBS operation. Around 11:00 p.m., the acting Manager of Distribution

Operations (MDO) temporarily reassigned complainant to the Automated

Flat Sorter Machine (AFSM) for the night because the operation was

short-staffed. The acting MDO informed the Supervisor of Distribution

Operations for AFSM that complainant could work until 7:00 a.m. if needed,

even though complainant's usual departure time was 5:00 a.m.

The Supervisor of Distribution Operations for AFSM subsequently told

complainant to stay until 7:00 a.m. Complainant, however, informed the

supervisor that she could not stay to work overtime. The supervisor

responded by telling complainant that she was required to stay because

of her status as a part-time Flexible Clerk. Complainant again informed

the supervisor that she could not stay.

The supervisor then spoke with the acting MDO, who agreed with the

supervisor that complainant was required to stay due to her status as a

part-time Flexible Clerk. When the supervisor informed complainant that

the acting MDO confirmed that complainant had to stay until 7:00 a.m.,

complainant questioned why she and another female part-time Flexible

employee were the only ones who were required to work overtime outside

of their normal operations area.

According to complainant, she asked another supervisor for a person to

relieve her, and the supervisor sent two male Casual employees to the

AFSM operation. However, the two male employees departed around 4:30 a.m.

Complainant departed from work around 5:00 a.m.

On the evening of July 9, 2006, the acting MDO conducted an official

discussion with complainant to find out why she had left work at 5:00

a.m. after being asked to stay and work overtime. Complainant responded

that she left work around 5:00 a.m. to pick up her children from her

mother. According to complainant, the agency then issued a written notice

charging complainant for being absent from overtime. On August 1, 2006,

the agency issued complainant a Letter of Warning for unsatisfactory work

performance and failure to follow instructions because complainant failed

to work overtime after receiving instructions to do so on July 9, 2006.

On August 17, 2006, the agency issued a Human Resources Award Notice,

informing complainant that she had been converted to full-time regular pay

because (1) a male employee failed to qualify in the time allotted for

training, and (2) complainant was the next senior currently qualified

part-time Flexible Clerk. However, on August 21, 2006, the agency

issued a correction notice that assigned a different male employee,

an unassigned regular operator of the Small Parcel Bundle Sorter, to

complainant's position and reverted complainant back to her original

position. The agency wrote in the correction notice that it should

have assigned this particular male employee to the residual vacancy,

rather than convert complainant to full-time regular pay status.

On September 1, 2006, complainant submitted information for pre-complaint

counseling, alleging that management and union officials discriminated

against her on the basis of sex (female) when the awarded position was

taken away from her and given to a male employee on August 21, 2006.

However, the EEO dispute resolution specialist's inquiry report indicated

that complainant alleged discrimination on the basis of sex (female) when:

(1) the agency issued a Letter of Warning to complainant on August 1,

2006; (2) complainant's job assignment was taken away from her on August

21, 2006; and (3) her local union failed to file a grievance on her

behalf on August 24, 2006.

On October 24, 2006, complainant filed an EEO complaint alleging that

she was discriminated against on the basis of sex (female) when:

1. on August 21, 2006, management officials, with the union's

consent, took away the position that had been awarded to complainant on

August 17, 2006 and assigned it to a male employee; and

2. union officials failed to file a grievance on complainant's

behalf for the "taking away" of her position on August 21, 2006.

On November 13, 2006, the agency accepted for investigation complainant's

allegations of sex discrimination when the agency: (1) issued to

complainant the August 1, 2006 Letter of Warning, and (2) took away

complainant's job assignment on August 21, 2006. The agency dismissed

complainant's allegation that the union discriminated against complainant

on the basis of sex when it failed to file a grievance on her behalf

on August 24, 2006 because it constituted a collateral attack on the

grievance process.

On November 13, 2006, agency and union representatives signed a grievance

settlement, which provided that the agency would remove the August 1,

2006 Letter of Warning from complainant's file on December 22, 2006 if

no similar infractions occurred.

At the conclusion of the investigation on January 27, 2007, 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. On June 6, 2007, the agency filed

a motion for a decision without a hearing. In complainant's response

to the agency's motion, complainant alleged that she was discriminated

against on the basis of sex when:

1. the agency disciplined complainant three times for the same

July 9, 2006 incident by conducting an official discussion, issuing a

written notice charging complainant with being absent from overtime,

and issuing a letter of warning; and

2. the agency took away complainant's assigned job and gave it to

a male clerk on August 21, 2006.

In addition, complainant alleged in her response to the agency's motion

that she was subjected to discrimination on the basis of reprisal for

prior EEO activity when she was "looked over" for another promotion by

the agency on May 21, 2007.

Over complainant's objections, the AJ assigned to the case granted the

agency's June 6, 2007 motion for a decision without a hearing and issued

a decision without a hearing on July 16, 2007. As a preliminary matter,

the AJ did not accept complainant's allegation of reprisal discrimination.

Rather, the AJ advised complainant to immediately report the claim to

an EEO counselor. The AJ then found that there were no material facts

in dispute and that complainant failed to demonstrate that the agency's

articulated reasons for disciplining complainant for the July 9, 2006

incident and "taking away" her awarded position on August 21, 2006 were

pretexts for sex discrimination. The agency subsequently issued a final

order adopting the AJ's finding that complainant failed to prove that

she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant did not file a brief on appeal. The Commission will determine

whether the AJ erred in issuing a decision without a hearing on this

record, finding no discrimination.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision, the Commission reviews de novo the

AJ's legal and factual conclusions, and the agency's final order adopting

them. 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"). The Commission is free to accept (if accurate)

or reject (if erroneous) the factual conclusions and legal analysis of

the AJ and agency. 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").

Procedural Issues: Union and Reprisal Claims

The Commission must determine whether the agency erred in dismissing

complainant's allegations of discrimination by union officials, and

also whether the AJ erred in not permitting complainant to amend her

complaint to include an allegation of reprisal discrimination.

For complainant's allegation that union officials discriminated against

complainant when they failed to timely file a grievance on her behalf,

the Commission finds that the agency properly dismissed complainant's

complaint for failure to state a claim. Complainant's claim constitutes a

collateral attack on the negotiated grievance process. We have held that

an employee cannot use the EEO complaint process to lodge a collateral

attack on another proceeding. See Willis v. Department of Defense,

EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States

Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad

v. United States Postal Service, EEOC Request No. 05930106 (June 25,

1993). The proper forum for complainant to have raised her challenges

to actions which occurred during the negotiated grievance process was

within that forum itself. It is inappropriate to now attempt to use

the EEO process to collaterally attack actions which occurred during

the negotiated grievance process.

For complainant's allegation that she was subjected to discrimination on

the basis of reprisal when the agency overlooked her for a promotion

on May 21, 2007, the Commission finds that the AJ properly denied

complainant's request to amend her complaint. After a complainant

has requested a hearing, the complainant may file a motion with the

Administrative Judge to amend the complaint to include claims that

are like or related to those raised in the pending complaint. Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO

MD-110), 5-9 (November 9, 1999). In deciding if a subsequent claim is

"like or related" to the original claim, a determination must be made on

whether the later incident adds to or clarifies the original claim, and/or

could have reasonably been expected to grow out of the investigation

of the original claim. See Scher v. U.S. Postal Service, EEOC Request

No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Service, EEOC Request

No. 05891068 (March 8, 1990); Webber v. Department of Health and Human

Services, EEOC Appeal No. 01900902 (February 28, 1990). In cases where

subsequent acts of alleged discrimination do not add to or clarify the

original claim, and/or they could not have been reasonably expected to

grow out of the investigation of the original claim, the later incident

should be the subject of a separate EEO complaint. Equal Employment

Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),

5-12 (November 9, 1999).

In her response opposing the agency's motion for an issuance of a decision

without a hearing, complainant alleged that the agency retaliated against

her for prior EEO activities when it failed to adhere to procedures for

filling full-time duty assignments by converting part-time flexible

employees. Specifically, complainant alleged that on May 21, 2007,

the agency failed to offer a residual vacancy to complainant and instead

offered the position to a male employee in violation of the collective

bargaining agreement between the agency and the union. The Commission

finds that this subsequent act of alleged reprisal discrimination does not

add to or clarify the original claim of sex discrimination. In addition,

the Commission finds that the subsequent alleged discrimination, which

occurred on May 21, 2007, could not have been reasonably expected to

grow out of the investigation of the original sex discrimination claim,

which occurred on August 21, 2006. Therefore, the Commission finds

that the AJ did not err in denying complainant's request to amend her

complaint, advising complainant to contact an EEO counselor for the

reprisal allegation, and determining that for timeliness purposes the

date of initial contact with an EEO counselor would be June 15, 2007,

the date that the Commission received complainant's response to the

agency's motion for issuance of a decision without a hearing.

Issuance of a Decision without a Hearing

The Commission must determine whether the AJ appropriately 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. Department of Defense, 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).

After reviewing the agency's motion and the complainant's response, the

Commission finds that complainant has not identified, and the record

does not reveal, a genuine issue of material fact in this case that

requires a hearing. In addition, the Commission finds that the record

was adequately developed for the AJ to issue a decision without a hearing.

Therefore, the AJ did not err by issuing a decision without a hearing.

To prevail in a disparate treatment claim, complainant must satisfy

the three-part evidentiary scheme fashioned by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally

establish a prima facie case by demonstrating that she 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 because 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, 143 (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).

Official Discussion, Written Notice of Absence from Overtime, Letter of

Warning

In her response to the agency's motion for issuance of a decision without

a hearing, complainant alleged that the agency discriminated against her

on the basis of sex when it conducted an official discussion, issued a

written notice of absence from overtime, and issued a letter of warning

for the incident on July 9, 2006 in violation of the agency's policies

on discipline procedures. Complainant argued that "[i]n most cases

where employees cannot stay for [overtime], they are neither disciplined

[n]or made to stay."

The AJ implicitly accepted complainant's amendment of this claim but found

that complainant failed to establish that the agency's actions were based

on complainant's sex. After reviewing the record, the Commission finds

that the AJ did not err in issuing a decision without a hearing, finding

no discrimination for this claim. The record includes an admission in

complainant's affidavit that the reason she originally filed a claim

about the Letter of Warning was because she did not get resolution for

her grievance for the August 21, 2006 job reversion. Specifically,

complainant averred: "The letter of warning was a separate issue, not

discrimination. I included it in my claim because I filed discrimination

(sex) because of my job reversion and because I filed it, I could not get

any resolution from my prior grievance." As for the official discussion

and the letter charging absence from overtime, the Commission finds that

there is nothing in the record to demonstrate that these actions were

motivated, in part or in whole, by complainant's sex.

Job Reversion

In her response to the agency's motion for issuance of a decision without

a hearing, complainant argued that the agency's articulated reason for

issuing a correction notice, that it had mistakenly converted complainant,

a part-time flexible employee, to full-time regular pay status before

recognizing that an unassigned regular male employee was entitled to the

position, was a pretext for discrimination. Specifically, complainant

maintained that the agency's "correction" did not adhere to its provisions

for job conversions. The AJ found that complainant failed to demonstrate

that the agency's actions were due to complainant's sex.

Assuming, arguendo, that complainant established a prima facie case

of discrimination on the basis of sex, the Commission finds that the

agency articulated a legitimate reason for issuing a correction notice,

and there is nothing in the record to indicate that the agency's

explanation was a pretext for discrimination on the basis of sex.

In her affidavit, complainant averred that the reason the agency took

away her awarded position was to "cover up negligence and past mistakes."

Specifically, complainant described past incidences where several male

employees benefited from erroneous assignments or placements that did

not adhere to relevant agency policies or regulations. The Commission

finds that complainant failed to demonstrate that the agency's issuance

of a correction notice was due to complainant's sex rather than to mere

mistaken application of the agency's personnel policies. Therefore,

the Commission finds that the AJ did not err in issuing a decision

without a hearing, finding no discrimination for this issue.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission affirms

the agency's final decision, finding that the complainant failed to

establish, by a preponderance of the evidence, that she was subjected

to discrimination on the basis of sex.

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 13, 2009

Date

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0120073933

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073933