0120071446
03-25-2009
Diane E. Guethlein, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Diane E. Guethlein,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120071446
Agency No. 4C450004305
Hearing No. 220-2006-00050X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 18, 2006 final order concerning
her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against her on the
bases of disability (migraine headaches and lower back injury) and in
reprisal for prior protected EEO activity1 when on April 20, 2005, she
was sent a letter instructing her to report to the Mid City Station on
April 27, 2005, for a pre-disciplinary interview, and was subsequently
issued a Notice of Suspension dated April 29, 2005.2
We must first determine whether it was appropriate for the EEOC
Administrative Judge (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. 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).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
The AJ assumed that complainant presented a prima facie case of
disability discrimination and reprisal and further assumed, for the
purposes of the decision, that complainant was a qualified individual
with a disability within the meaning of the Rehabilitation Act. However,
the AJ concluded that the record is devoid of evidence of pretext or
discriminatory/retaliatory animus.
Specifically, the AJ noted that the undisputed record shows the following:
During the relevant time-frame, complainant was employed by the agency
as a general clerk at the agency's Mid City Station in Cincinnati, Ohio.
The record further shows that on April 29, 2005, complainant was issued
a Notice of Seven-Day No Time-Off Suspension (Notice) for failure to
follow instructions. The Notice explains the basis for the action as
complainant's failure to respond to an April 12, 2005 extended absence
letter and failure to respond to an April 20, 2005 letter instructing her
to report to the Mid City Station for a pre-disciplinary interview (PDI).
The record shows that the suspension was reduced to a Letter of Warning
(LOW) pursuant to a grievance action. The LOW was to be removed from
complainant's personnel file on October 29, 2005, provided complainant
received no subsequent discipline.
Complainant asserts that she was off work in 2005, for an extended
period of time under a doctor's care and on Family and Medical Leave
Act (FMLA) leave. Complainant states that, upon expiration of her
approved FMLA absence, she sent medical documentation to the FMLA
department about her continuing absence, but not to her manager (M1).
Complainant further asserts that when she received the April 20, 2005
letter from M1 instructing her to report for the PDI, she left voice
mail messages with two area managers (M2 and M3) but did not contact M1,
nor report for the meeting, because she believed (incorrectly) that
M1 was not her manager. Complainant also asserts that M1 knew that
she was off work and the reason for such absence. Complainant further
believed that M1 was harassing her and trying to find a way to fire her
in reprisal for her prior EEO activity and because she is disabled.
M1 asserts that he sent complainant an extended absence letter on April
12, 2005, because complainant had been absent from work for an extended
period of time, had not responded to a five-day letter sent to her in
January of 2005, and exhausted her FMLA leave for the 2005 calendar year
on April 2, 2005. M1 further asserts that complainant was instructed
to respond to him rather than the M2 and M3, but she failed to follow
the instructions in the letter. M1 further asserts that complainant
did not respond to his April 20, 2005 letter instructing her to report
for the PDI.
We note that, in order 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). 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, however, since 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, 134 (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).
The AJ concluded that the agency articulated legitimate,
non-discriminatory reasons for its actions. Specifically, M1 stated
that complainant was issued the notice of suspension because she failed
to follow instructions when she did not respond to an extended absence
letter sent to her on April 12, 2005, and did not respond to a letter
sent to her on April 20, 2005, instructing her to report to the Mid
City Station for a PDI. The AJ also concluded that complainant failed
to establish pretext as to the agency's stated reasons for its actions.
The AJ noted that complainant acknowledged that she did not respond to the
letters sent to her by M1. Moreover, the AJ noted that complainant stated
that she did not respond to the letters because she did not believe that
M1 was her manager. Complainant explained that she later learned that she
had been transferred back to the Mid City Station from the Murray Station
and that M1 was her manager. The AJ concluded that, while complainant
provided an explanation as to why she did not respond to the letters,
she failed to present evidence showing that M1 sent her the letters and
concurred with the issuance of the disciplinary action for any reason
other than those articulated by M1. The AJ also noted that no evidence
was presented to show that any of the identified comparative employees
experienced an extended absence and/or failed to follow instructions.
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 as alleged.
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
March 25, 2009
Date
1 Complainant withdrew her claims of sex and age discrimination in her
opposition to the agency's motion for summary judgment.
2 The agency previously dismissed the following claims: (1) on August
17, 2004, complainant was told to work outside of her restrictions; (2)
on January 12, 2005, complainant was sent Family and Medical Leave Act
(FMLA) papers to fill out; and (3) on January 28, 2005, she was scheduled
to report for a pre-disciplinary interview, and was subsequently issued
a Letter of Warning dated February 8, 2005. The agency dismissed these
claims in accordance with 29 C.F.R. � 1614.105(a)(1), on the basis of
untimely EEO counselor contact, noting that complainant's initial EEO
contact occurred on April 21, 2005. The agency also dismissed Claim 1,
pursuant to 29 C.F.R. � 1614.107(a), on the basis that the identical
claim was raised in a previous complaint. The AJ noted that complainant
did not oppose the dismissal of these claims, and therefore deemed
complainant to have waived review of the dismissal. Complainant has
contested on appeal neither the dismissal nor the AJ's determination.
We therefore do not address this matter further.
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0120071446
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071446