0120141568
04-20-2016
Fawn G.1 Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Fawn G.1
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120141568
Hearing No. 520-2014-00035X
Agency No. 1B-108-0001-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's February 6, 2014 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Metro New York Logistics and Distribution Center (L&DC) in Bethpage, New York.
On November 24, 2012, Complainant filed a formal EEO complaint alleging she had been subjected to unlawful retaliation for prior EEO activity.
The formal complaint was comprised of the following five claims:2
1. on July 7, 2012, Complainant reported to her supervisor that she was made "uncomfortable" when she was watched by a male supervisor who was not her direct supervisor and was not supervising her area;
2. on July 10, 2012, she was charged as being Absent Without Leave (AWOL) on July 7, 2012;
3. on September 10, 2012, she received a PS Form 50 Notice of Personnel Action, advising her of a downgrade to her level and pay;
4. on or about December 20, 2012, she was given a Letter of Warning for unbecoming behavior; and
5. on or about February 27, 2013, she was placed on Emergency Placement in an Off-Duty Status without pay.3
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On December 5, 2013, the AJ issued a notice of intent to issue a decision without a hearing, to which both parties responded.
In her response, Complainant focused on the fact that the AJ issued the notice of intent without affording the parties the opportunity to engage in discovery. The AJ overruled Complainant's objections and indicated that she would proceed without affording the parties the opportunity to conduct discovery, ruling that Complainant did not show that discovery was needed to raise a material fact in dispute.
The AJ determined that the record developed during the investigation revealed that Complainant had filed two prior EEO complaints before the matters at issue. The AJ noted that the most recent formal complaint had been filed in 2011, in which Complainant alleged discrimination when she was removed as a shop steward by the union. The earlier complaint was filed in 2009. The AJ noted that the 2009 formal complaint had been settled in December 2009, when Agency management agreed to give a service talk about Hazmat, and related Agency expectations.
Complainant contended that reporting the male supervisor to her female supervisor also constituted protected activity. She indicated that she was "uncomfortable" with being watched because the male supervisor had been accused of sexual harassment by other female employees. Complainant alleged that the personnel actions in claims 3, 4 and 5 occurred within months of reporting she was being "watched." However, the AJ determined that Complainant did not engage in protected activity because she did not complain that she was being sexually harassed or that she had some other EEO-related concern. The AJ found, instead, that Complainant simply complained that she was "being watched." The AJ noted that Complainant's supervisor (Supervisor A) stated that she "approached me on July 6, 2012, and demanded [a male supervisor] to stop looking at her. I advised [Complainant] that no one was watching her, and to go back to her work area." Furthermore, Supervisor A stated that she did not tell a named male supervisor and named female acting supervisor "to leave the work area. They had come to see how much mail there was on the long dock and they stop by to speak to me."
The male supervisor identified by Complainant (Supervisor B) denied watching Complainant working in her assigned area. Specifically, he stated, "I was headed to the long dock to see how much mail I had staged and I stopped to talk with [a named supervisor] who had made her way over to me and [acting manager]. [Supervisor A] and [Complainant] stepped away and [Supervisor A] returned alone. A few minutes later, [Complainant] returned and [Supervisor A] stepped away again with her."
Regarding claim 2, Supervisor A stated that on July 10, 2012, she charged Complainant with AWOL on July 7, 2012, for 1.54 hours because Complainant walked "away from her work assignment and never returned back to work. I went to check [the Time and Attendance Collection System] to see if she was still on the clock, and saw she had ended her tour." The supervisor further stated, "I issued [Complainant] an AWOL for leaving the building without authorization. She did not notify any supervisor or MDO before leaving the building."
Regarding claim 3, Complainant alleged she was retaliated against when she was "downgraded" from Lead Mail Processing Clerk, Level 7, to Mail Processing Clerk, Level 6. However, the AJ found that the evidence showed that Complainant voluntarily bid for her new position as a Level 6 Mail Processing Clerk.
Regarding claim 4, the AJ found that the evidence showed that on December 19, 2012, a supervisor (Supervisor C) issued Complainant a letter of warning because, on December 2, 2012, Complainant was involved in two verbal confrontations which caused disruptions on the workroom floor. Supervisor C denied any awareness of Complainant's prior protected activity. According to the letter of warning, the first instance involved Complainant approaching a supervisor and speaking to him disrespectfully in a loud voice while pointing her finger at him in a threatening manner. The second instance, on the same date, involved Complainant yelling at a coworker. Complainant disputes the accusations against her made in the letter of warning.
Regarding claim 5, the AJ noted that on February 28, 2013, Complainant was placed in emergency placement, off-duty without pay status. The record reflects that Complainant and a female employee got into an altercation, and the Manager of Distribution Operations placed both employees into emergency off-duty status. The AJ determined that Complainant had not shown that she was treated any differently than the other female employee involved in the altercation. Specifically, the AJ determined that both Complainant and the female employee "were both immediately placed in off-duty, unpaid status. There is no evidence this has anything to do with Complainant's prior EEO activity...Complainant now argues that the Agency's decision to place Complainant in emergency leave was not retaliatory, but rather the decision to return the other employee to work but not Complainant is retaliatory...it is debatable whether being returned from emergency leave is even the accepted claim. But, assuming for purposes of this analysis only that it is the accepted claim, there is still no evidence that the decision to return the other employee and not Complainant to work has anything to do with Complainant's prior EEO activity. According to Complainant, she believes the other employee also has EEO activity. Thus, there is no evidence to suggest that this decision has anything to do favoring one employee over another due to anyone's prior EEO activity (emphasis added)."
Based on these facts, on January 24, 2014, the AJ issued a decision by summary judgment in favor of the Agency. In her decision, the AJ found that the evidence of record did not establish that Complainant was subjected to any of the actions complained of as a result of retaliatory animus. The Agency fully implemented the AJ's decision in its final action.
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from an agency's decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). 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. 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 does not sit as a fact finder. Id. 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. A disputed 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. Catreet, 477 U.S. 317, 322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of a case. If a case can only be resolved by weighing conflicting evidence, a hearing is required. In the context of an administrative proceeding, an AJ may properly consider summary judgment 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).
Here, we agree with the AJ that the record was sufficiently developed through the investigation for summary disposition. The crux of the issue is whether or not the events at issue occurred as a result of retaliatory animus. Such a causal connection may be shown by evidence that an adverse action followed prior protected activity within such a period of time and in such a manner that a retaliatory motive can be inferred. The record shows that Complainant had filed EEO complaints in the past, but she does not focus on these complaints as the impetus for the alleged retaliation. Rather, she contends on appeal that her complaint about the male supervisor watching her constituted protected EEO activity for which she was then retaliated against. However, the undisputed facts do not support Complainant's contention. While she argues that the male supervisor had been accused of sexual harassment in the past by other employees, she does not contend, nor does the record show, that she articulated to her supervisor anything other than that someone who was not her supervisor was "watching" her on a single occasion. There is absolutely no contention that she indicated that she felt sexually harassed or discriminated against by the incident. As such, we agree with the AJ that reporting the male supervisor for watching her, under the facts as presented here, simply was not sufficient to constitute protected activity.
Complainant alleges that the AWOL charge (claim 2) was also motivated by her 2009 EEO complaint. However, we again agree with the AJ that this was too remote in time and, without something more proffered by Complainant, it simply does not create the necessary causal connection. With regard to the letter of warning (claim 4), while Complainant disputes the factual bases for the warning, she has not disputed the issuing supervisor's denial of any awareness of Complainant's prior EEO activity. Without such awareness, Complainant cannot establish retaliation as a motivation for the warning.
On appeal, Complainant also does not dispute the AJ's determination, with regard to the alleged downgrade (claim 3), that it resulted from Complainant's voluntary bid on another position. Therefore, we concur that this matter was not the result of an adverse action on the part of the Agency.
Finally, Complainant alleges retaliation was the motive for her placement on emergency off-duty status following an altercation with another employee. However, it is undisputed that the other employee involved in the altercation was also placed on emergency off-duty status. Complainant also has not disputed the underlying facts concerning the event that precipitated placing the two employees on off-duty status. Before the AJ and on appeal, Complainant alleged for the first time that she was not contesting the initial placement on off-duty status as retaliatory, but the fact that the other employee involved was returned to duty prior than Complainant. The AJ found that there was no evidence that this decision was retaliatory because Complainant, herself conceded that she believed the other employee also had prior EEO activity so there was no reason to treat them differently on that basis. On appeal, Complainant now argues that, despite her own "belief," the AJ was wrong because the investigative report indicated that, in fact, there was no evidence that the other employee had filed a prior EEO complaint. However, even assuming the other employee did not have prior EEO activity, we still find that Complainant has proffered any evidence that the decision to return the other employee and not Complainant had anything at all to do with her distant prior EEO activity.
CONCLUSION
Accordingly, after careful consideration of the record and the arguments of the parties, it is our decision, for the reasons articulated above, to AFFIRM the Agency's final order adopting the AJ's decision concluding no unlawful retaliation has been established in this case.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 20, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1-5. Complainant has not challenged the procedural dismissal by the Agency of two additional claims. Therefore, they will not be addressed further in this decision.
3 The record reflects that claims 4 and 5 were later amended to the formal complaint.
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0120141568
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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