Fatima A. Parker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 12, 2009
0120070138 (E.E.O.C. Nov. 12, 2009)

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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0120070138

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0120070138