0120071576
06-04-2009
Dianne M. Reardon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dianne M. Reardon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071576
Hearing No. 520-2006-00230X
Agency No. 4B-018-0021-06
DECISION
On February 8, 2007, complainant filed an appeal from the agency's January
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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
Complainant was hired by the agency on September 3, 2005,to serve as
a Part-Time Flexible Letter Carrier at the Fitchburg, Massachusetts
Post Office. On February 10, 2006, complainant filed an EEO complaint
alleging that she was discriminated against on the bases of sex
(female) and age (D.O.B: 03/13/1958) when, during her probationary
period, she was subjected to a hostile work environment, resulting in
her termination effective November 4, 2006. Specifically, complainant
alleged that she was harassed from September 19, 2005 through September
22, 2005. She testified that, during this time, her route supervisor (S1)
continuously berated her for being both "too old" and "too out of shape"
to the point where she was forced to stop showing up for work, which
resulted in her termination. Complainant stated that she was "checked
on" while doing her route and was made aware of her deficiencies in
such matters as being too slow, needing to speed up, and crossing lawns.
Complainant further alleged that S1 also wondered aloud in the presence
of her co-workers "how much weight [she] would lose" from performing
the tasks of mail carrier. Complainant considered such behavior to be
evidence of sex discrimination.
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. Over the complainant's
objection, the AJ assigned to the case granted the agency's November
27, 2006 motion for a decision without a hearing. On January 3, 2007,
the AJ issued a decision without a hearing finding no discrimination.
The AJ found that complainant had failed to establish a prima facie
case of age and sex discrimination. The AJ found that complainant
did not show that any similarly-situated individual outside of one of
her protected classes was treated more favorably than she was treated
under the same or similar circumstances. The AJ noted that complainant
identified individuals as alleged comparatives, but determined that none
of them were similarly-situated. Specifically, the AJ determined that
complainant was a new employee still within her probationary period as
a Part-Time Flexible City Carrier, but that the comparatives were not
serving probationary periods and, therefore, were not similarly situated.
The AJ also determined that complainant did not establish that she was
subjected to harassment sufficiently severe or pervasive so as to render
her work environment hostile. The AJ found that the offensive comments
about complainant's age and shape over a four-day period, instructions
as to how she should do her work, and a single comment about how much
weight she would lose carrying mail were insufficient to alter the
conditions of her employment. The AJ concluded that, as a consequence,
complainant was unable to establish her claim that she was forced to
stop working because of maltreatment and harassment by the agency.
The AJ found, moreover, that even assuming that complainant established
a prima facie case, the agency presented met its burden of explaining
its actions. Management testified that street observation of carriers is
undertaken regularly and is required for all new employees. The AJ also
found that complainant failed to ever complete her assigned routes, missed
deliveries, dragged her mail bag on the ground, clocked out early without
permission, and left her vehicle. The AJ further found that complainant
last reported for work on September 23, 2005, and was terminated during
her probationary period for failing to report for work since that date.
Therefore, the AJ concluded that complainant failed to establish that
she was subjected to a sufficiently severe or pervasive hostile work
environment or that there was any discriminatory animus in the agency's
actions.
The agency subsequently issued a final order adopting the AJ's
determination that complainant failed to prove that she was subjected
to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in issuing summary
judgment because there are material facts at issue. Complainant
contends that the AJ ignored direct evidence of discrimination and
placed an unreasonable burden of proof on the complainant. Specifically,
complainant alleged that S1 told her she would not be retained beyond her
probationary trial period because she was too old. Complainant further
contends that the AJ also erred in ruling that complainant's cited
comparatives were not similarly-situated than complainant because they
were not probationary employees. Finally, complainant requests that
the case be remanded for a hearing.
In reply, the agency asserts that, as the AJ found, the record does
not support a finding that the challenged actions were motivated by
complainant's sex or age. The agency asks the Commission to affirm the
final order.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the 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).
To establish a claim of harassment, complainant must show that: (1) she
is a member of the statutorily protected class; (2) she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on
the statutorily protected class; and (4) the harassment affected a
term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment. Humphrey
v. United States Postal Service, EEOC Appeal No. 01965238 (October
16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be
evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems. Inc., EEOC Notice No. 915.002 (March 8, 1994). Further, the
incidents must have been "sufficiently severe and pervasive to alter
the conditions of complainant's employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
After a careful review of the record, we find that summary judgment
was appropriate because no genuine dispute of material fact exists.
Upon review of the incidents set forth by complainant, we agree with the
AJ that they were not so sufficient severe or pervasive as to constitute
unlawful harassment. The Commission has repeatedly found that claims of
a few isolated incidents of alleged harassment usually are not sufficient
to state a harassment claim. See Phillips v. Department of Veterans
Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and
Human Services, EEOC Request No. 05940481 (February 16, 1995). Unless the
conduct which complainant identified is very severe, a single incident or
isolated incidents generally will not create a hostile environment. See,
e.g., Scott v. Sears, Roebuck and Co., 798 F.2d 210, 214 (7th Cir. 1986).
We further find that the AJ properly determined that complainant failed to
identify any similarly-situated employees with regard to her claim of age
and/or sex discrimination. The two employees identified by complainant
were not probationary employees. Moreover, the statement allegedly made
by S1, that complainant would be fired because she was too old, neither
creates a genuine issue of material fact nor establishes direct evidence
of discrimination. Complainant's termination was not effected at S1's
behest; rather, complainant was terminated from employment effective
November 4, 2005, because she advised the agency on September 26, 2005,
that she would not be returning to work.
Finally, with regard to complainant's claim that she was forced to
stop working, we note that a discriminatory constructive discharge
occurs when the employer, motivated by discriminatory animus,
creates working conditions that are so difficult, unpleasant, or
intolerable that a reasonable person in complainant's position would
feel compelled to resign. Doe v. Social Security Admin., EEOC Appeal
No. 01A114791 (February 21, 2003). In other words, the employee is
essentially forced to resign under circumstances where the resignation is
tantamount to the employer's termination or discharge of the employee.
Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997).
In order to establish a constructive discharge claim complainant must
show that: (1) a reasonable person in her position would have found the
working conditions intolerable; (2) conduct which constituted prohibited
discriminatory treatment created the intolerable working conditions; and
(3) complainant's involuntary resignation resulted from the intolerable
working conditions. Greer v. United States Postal Serv., EEOC Appeal
Nos. 01976756, 01976792 (December 29, 2000) (citing Taylor v. Department
of Defense, EEOC Request No. 05900630 (July 20, 1990)). We find that
there is no indication in the record that complainant was subjected
to intolerable working conditions which arose out of conduct which
constituted prohibited discrimination on the bases of her sex and/or age.
Accordingly, we find that complainant failed to prove any constructive
discharge claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency order.
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
June 4, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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