0120082140
09-10-2009
Debra M. Greene, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Debra M. Greene,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120082140
Hearing No. 532-2007-00056X
Agency No. 1C-441-0086-06
DECISION
On April 4, 2008, complainant filed an appeal from the agency's March
31, 2008 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 appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
1. Whether the AJ properly issued a decision without a hearing.
2. Whether the AJ properly concluded that complainant was not subjected
to discrimination on the bases of national origin, color, and disability.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as an Address Management Systems Clerk in Cleveland, Ohio.
On September 29, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of national origin (Hispanic),
color (light complexion), and disability when on August 3 and 4, 2006,
complainant was sent home from work for wearing non-regulation footwear.
In an investigative affidavit, complainant stated that on the morning of
August 3, 2006, she was wearing open-toe sandals and the Acting Postmaster
asked her if she had another pair of shoes to wear. Complainant stated
that she told the Postmaster that she did not have another pair of shoes
to wear, and the Postmaster stated that she could not allow complainant
to stay at work wearing the open-toe shoes. Complainant stated that
she left the room and told the Postmaster that she would obtain medical
documentation from her physician supporting her wearing of open-toe shoes.
Complainant stated that she informed her immediate supervisor that she
was ordered to go home, and her supervisor asked her to wait until he
discussed the matter with the Postmaster. Complainant stated that she
was later ordered to go home for wearing shoes that did not conform to
the dress code. Complainant further stated that on August 4, 2006, the
agency ordered her to go home and change into tennis shoes so that she
could return to work. Complainant stated that she went to her doctor's
office to obtain documentation that indicated that she needed to wear an
adjustable shoe because of her swollen foot. Complainant further stated
that she wore brown open-toe sandals on August 3 and 4, 2006 because her
foot was swollen after surgery, and her immediate supervisor approved
her to wear non-regulated footwear before she returned to work
Complainant's supervisor stated that on August 3, 2006, complainant
informed him that the Postmaster had instructed her to go home so that
she could wear regulation shoes on her "good foot." He stated that
complainant returned to work the next day with a note from her doctor
that stated that complainant could work wearing sandals or tennis shoes.
The supervisor stated that when complainant came to work on August 4,
2006 wearing sandals, he instructed complainant to go home and change into
tennis shoes because her sandals were open-toed. The supervisor stated
that he discussed the matter with the Postmaster, and the Postmaster
decided that complainant could wear tennis shoes on both feet until
she was able to wear regulation footwear. He stated that he and the
Postmaster determined that wearing sandals at work would be unsafe.
He stated that complainant was sent home on August 3, 2006 so that she
could retrieve regulation footwear for her good foot, and sent on home
on August 4, 2006 so that she could wear tennis shoes until she was able
to wear regulation footwear on both feet
At the conclusion of the investigation, 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 12, 2007, the agency moved for a decision
without a hearing. On March 18, 2008, the AJ issued a decision without a
hearing in which he found that complainant was not subjected to unlawful
discrimination because she failed to establish prima facie cases of
disability, national origin, or color discrimination. The agency
subsequently issued a final order adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ improperly found that she was
not subjected to color or national origin discrimination. Complainant
argues that contrary to the AJ's finding, she identified comparators who
were treated more favorably than she was treated. Complainant further
argues that she was the only person sent home before her tour ended.
Complainant further notes that because her "condition has improved," she
does not challenge the AJ's determination with respect to disability
discrimination on appeal. The agency requests that we affirm its
final order.
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 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"). 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").
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).
We find that the AJ properly issued a decision without a hearing because
complainant failed to show that a genuine issue of material fact exists.
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 Construction
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. Texas Department
of Community 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
Center v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of analysis, we assume arguendo that complainant is a
qualified individual with a disability and established a prima facie
case of discrimination. Nonetheless, we find that the agency provided
legitimate, non-discriminatory reasons for its actions. Specifically,
agency management stated that complainant was sent home on August 3,
2006 because she was wearing open-toe shoes which posed a safety hazard.
Agency management further stated that complainant was sent home on
August 4, 2006 so that she could retrieve tennis shoes that were
within her medical restrictions and did not pose the safety hazard
that open-toe shoes did. The record reflects that the agency's
Cleveland District footwear policy bans all open-toe, open-sided,
and open-sided shoes, including heels, thongs, clogs, mules, slippers,
and sandals. Additionally, the policy forbids employees from wearing
cloth or canvas shoes, including tennis shoes and sandals. The record
also reflects that complainant submitted a note from her physician dated
August 3, 2006 in which the physician informed the agency that complainant
needed to wear sandals or tennis shoes on both feet for the entire month
of August 2006. In light of the physician's note, the agency's footwear
policy, and concerns about safety, we find it reasonable that the agency
would allow complainant to wear enclosed footwear such as tennis shoes
but not open-toe sandals.
Complainant contends that she was treated less favorably than an
African-American Address Management Systems Specialist who wore sandals
and was not sent home. However, complainant's supervisor stated that the
co-worker was not sent home because although her shoes may have looked
like sandals, they were compliant with agency footwear policy because
they were close-heeled and close-sided. Complainant further alleged
that an olive-complexioned Hispanic Address Management Systems Clerk
wore open-toe sandals, but was only reprimanded by the Postmaster and
allowed to change into another pair of shoes. However, we note that
by complainant's own admission, the Postmaster also gave complainant
the opportunity to change into another pair of shoes at work on August
3 and 4, 2006, but complainant did not have a pair of compliant shoes
at work with her.
Finally, to the extent that complainant claims that she was denied a
reasonable accommodation, we find that the agency provided her with a
reasonable accommodation by allowing her to wear tennis shoes at work in
accordance with her physician's August 3, 2006 medical restrictions. Thus,
we find that complainant failed to provide any evidence from which a
reasonable fact-finder could conclude that the agency's non-discriminatory
reasons are pretext for unlawful discrimination. Thus, we find that
the AJ properly found no discrimination.
CONCLUSION
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 order,
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 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
_____9/10/09_____________
Date
2
0120082140
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120082140