0120090877
05-21-2009
Deborah L. Lidback, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah L. Lidback,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090877
Agency No. 4B-040-0020-07
Hearing No. 520-2008-00220X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's November 14, 2008 final action concerning her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On October 18, 2007, complainant filed the instant formal complaint. Therein, complainant claimed that she was subjected to harassment and a hostile work environment on the bases of sex (female), age (51) and in reprisal for prior EEO activity when:
on or about June 9, 2007, she was issued a Notice of Removal.
Following the investigation into her formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On November 5, 2008, the AJ issued a decision without a hearing, finding no discrimination. The agency's final action fully implemented the AJ's decision in its final action.
The AJ found that, based on the evidence of record, complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of sex, age and reprisal. Specifically, the AJ found that on June 6, 2007, complainant was issued a Notice of Removal for Unacceptable Conduct. The AJ found that on May 26, 2007, complainant approached her co-worker (CW) while he was waiting on a customer at the window and began loudly complaining about flyers that had been case improperly. The AJ noted in the Notice of Removal dated June 8, 2007, CW asked complainant to wait until he was finished with the customer, but that complainant continued to complain loudly enough for customers to hear. The AJ noted that during the pre-disciplinary interview, complainant denied the allegations concerning the May 26, 2007 incident, stating that she believe she acted appropriately and did nothing wrong. The AJ noted that according to the Postmaster (PM), she took the seriousness of complainant's actions; her unwillingness to take responsibility for her actions and her past disciplinary record into consideration in making her determination to remove complainant from agency employment. The AJ noted complainant's past disciplinary record includes a Letter of Warning for Unacceptable Conduct on October 18, 2005 citing negative and derogatory remarks on the work floor; a 7-Day Suspension dated July 10, 2006 charging complainant with unacceptable conduct when she harassed a new employee by repeatedly telling her she was supposed to be fired; a 14-Day Suspension dated October 19, 2006 for Unacceptable Conduct for calling a customer and leaving a message that his mail would be "shut off" until he put up another mailbox without prior authorization by management.
With respect to complainant's harassment claim, the AJ found that complainant did not prove she was subjected to harassment sufficiently severe or pervasive so as to render her work environment hostile.
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.
On appeal, complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. Specifically, complainant states that she believed PM "has repeated[ly] violated my civil right of the pursuit of happiness. I also believe she is guilty of age discrimination, sex discrimination, harassment, intimidation, disparaged treatment and retaliation for calling the EEO. I also believe I have been in a hostile work environment for years." Complainant further states that in regard to the May 26, 2007 incident, she "was only following [PM's] rule about leave time, that is why I was out front. I knew I was on my last chance with [PM] so that is why I lowered my voice when talking to [CW]. He was rude and apologized to me twice." Furthermore, complainant argues that the PM should be removed from agency employment because she "does not have a clean record either."
The Commission is unpersuaded by complainant's arguments on appeal. The Commission notes that the AJ's decision without a hearing was predicated upon the AJ's assessment that according to PM, she made the determination to remove complainant from agency employment based on her unacceptable conduct on May 26, 2007 and her past disciplinary record. We note further note that the record reflects that complainant continued to engage in unacceptable conduct after receiving progressive discipline for similar behavior and several warnings that she could be removed if this behavior continued. Finally, with regard to the issue of harassment, the AJ again, properly found that the matters addressed herein do not rise to the level of actionable harassment.
Therefore, 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 action, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.1
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
May 21, 2009
__________________
Date
1 On appeal, complainant does not challenge a November 11, 2007 partial dismissal issued by the agency regarding other claims: (that she was subjected to harassment and a hostile work environment on the bases of sex, age and in reprisal for prior EEO activity when on October 19, 2006, she was issued a Notice of Fourteen Day Paper Suspension; on July 10, 2006, she was issued a Notice of Seven Day Paper Suspension; on October 24 and 25, 2006, another employee was supposed to ride with her; in July, September and October 2006, her requests for leave were denied; and in May 2007, her request to have two familiars removed from her DPS was not granted). Therefore, we have not addressed these issues in our decision.
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0120090877
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090877