0120070138
11-12-2009
Fatima A. Parker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Fatima A. Parker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070138
Hearing No. 220-2006-00003X
Agency No. 1C-441-0011-05
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 15, 2005 final order concerning her
equal employment opportunity (EEO) complaint claiming unlawful 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. Complainant claimed
that she was the victim of unlawful employment discrimination on the bases
of race (African-American), sex (female), and in reprisal for prior
protected activity when on August 11, 2004, she was issued a Notice of
Suspension of Fourteen Days or Less, for being absent without official
leave, and for failure to maintain a regular work schedule.
The record reveals that complainant, a Mail Handler at the Cleveland, Ohio
office requested vacation time for June 16 - 20, 2004. Complainant's
request was approved. Complainant then learned that a colleague was
unable to take her vacation, because vacation time for June 19 and
June 20, 2004, had already been approved for complainant. Complainant
thereupon decided that she would relinquish the last two days of her
approved vacation time (June 19 and June 20, 2004), to her colleague.
The acting supervisor asked complainant to make the change to her vacation
request in writing. Complainant came into the office on a scheduled day
off to make the change but she could not recall the dates for the last
two days of her vacation. Complainant then asked the acting supervisor
for the dates, he inadvertently told her the dates were June 13 - 21,
2004. Complainant indicated that she did not question the validity of
his response, and therefore did not realize that she had just cancelled
her entire vacation.
The record reflects that complainant went on vacation as she had planned,
and reported to work on June 19, 2004. Upon her return, she learned that
she had been charged Absent Without Leave (AWOL) for June 16 - 18, 2004.
Complainant's supervisor was upset that complainant had not called to
let him know that she would not be coming in. Complainant's supervisor
thereafter issued her the Notice of Suspension.1 Complainant maintained
that her supervisor knew that she had made a mistake with regard to the
vacation dates and that there was no reason that she would have called
in when she was on vacation.
Complainant then filed the instant complaint.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing, finding no discrimination. Regarding the basis of reprisal,
the AJ found that complainant failed to establish a prima facie case,
because the acting manager was not aware of complainant's prior EEO
activity. Regarding the bases of race and sex, the AJ also found that
the complainant failed to establish a prima facie case because she did
not show a causal connection between her membership in protected groups
and the issuance of the Notice of Suspension. The AJ determined that
the comparators offered by complainant were not similarly situated
as neither of the two comparators had prior disciplinary records.
The agency fully implemented the AJ's finding of no discrimination.
On appeal, complainant contends that the two male comparators (one
Caucasian, the other African-American) received less severe and less
immediate discipline than she received. Complainant argues that it
should have been clear that a mistake was made with regard to the dates.
Complainant maintains that she should not have been disciplined for this
mistake because she was following the instruction of her supervisor.
ANALYSIS AND FINDINGS
The standard of review in rendering this appellate decision is de
novo, i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
We consider whether the AJ properly issued a decision without a hearing on
this record. The Commission's regulations allow an AJ to issue a decision
without a hearing when s/he finds that there are no genuine issues of
material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned
after the summary judgment procedure 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).
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).
The AJ's determination to issue a decision without a hearing (summary
judgment) in this case was inappropriate. First, we find that complainant
has presented sufficient evidence to create a genuine issue of material
fact as to whether reprisal might have been involved in this case.
Complainant's supervisor maintains that he was unaware of complainant's
prior EEO activity. Complainant, however, maintains that her supervisor
was aware of her prior EEO activity because he was required to sign off
on a document regarding her representation of a co-worker regarding the
co-worker's own EEO complaint.
Second, regarding the basis of sex, complainant maintains that two
male workers were treated more favorably than she was treated. The AJ
indicates that they were not similarly situated because complainant had
prior disciplinary action regarding her leave while the male employees
did not. The record disputes this, and shows that the male workers
had more leave infractions than she did, but they received less severe
disciplinary action. Whether the male employees were treated more
favorably requires further development. As such, we find this to be a
material issue of fact.
For the above reasons, issuance of a decision without a hearing was not
warranted under 29 C.F.R. � 1614.109(g). Therefore, the Commission
VACATES the agency's final order and REMANDS the entire matter for a
hearing in accordance with this decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. � 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, D.C. 20013. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 12, 2009
Date
1 The Notice of Suspension was reduced to a stern discussion during
the grievance procedure.
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2
0120070138
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120070138