0120051916
02-28-2007
Heather F. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific area) Agency.
Heather F. Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific area)
Agency.
Appeal No. 01200519161
Hearing No. 340a40205x
Agency No. 4F926010203
DECISION
JURISDICTION
On January 11, 2005, complainant filed an appeal from the agency's
December 30, 2004 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Cage Clerk in the Baldwin Park Post Office, Baldwin Park, California.
Complainant claimed that on December 13, 2002, she had a conversation
with her supervisor (S1) in which she expressed that she was offended
by the inappropriately sexual conduct between another supervisor (S2)
and a co-worker. Thereafter, complainant claimed that she was illegally
harassed.
On January 13, 2003, complainant contacted an EEO Counselor and filed
a formal EEO complaint on July 1, 2003. She alleged that she was
discriminated against on the bases of race (Caucasian), sex (female),
disability (arthritis and sinusitis), and in retaliation for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
when the following occurred:
1. S2 (African American, male) told her to limit her breaks to 10
minutes;
2. S2 loudly discussed her performance on the workroom floor in front
of other employees;
3. S2 told her to discontinue use of her cell phone;
4. an audit was performed on her work area;
5. she was told to update her medical documentation for her request for
leave under the Family Medical Leave Act (FMLA) on two occasions;
6. she was given letters of warning on December 24, 2002, January 10,
2003 and June 11, 2003;
7. S3 (Mexican American female) gave complainant a flow chart to improve
her work performance on December 24, 2002; and
8. S3 demanded an explanation from complainant for why carriers were
being delayed.
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.
Thereafter, while the complaint was pending before the EEOC Administrative
Judge for consideration, complainant requested leave to amend the
complaint to add the following incidents:
1. complainant was issued a letter of warning on August 27, 2003 for
delayed express mail;
2. complainant received a letter of warning on December 23, 2003;
3. complainant was issued a 14 day suspension on January 29, 2004;
4. complainant was ordered to submit to a Fitness for Duty Examination
(psychiatric) on July 15, 2004;
Over the complainant's objections, the AJ assigned to the case granted
the agency's April 4, 2004 motion for a decision without a hearing and
issued a decision without a hearing on November 3, 2004. The agency
subsequently issued a final order adopting the AJ's finding that no
discrimination occurred.
DECISION OF THE ADMINISTRATIVE JUDGE
First addressing complainant's motion to amend the complaint filed on July
23, 2004, the AJ concluded that three of the incidents alleged were not
raised in a timely manner because they occurred more than 45 days from
the time complainant filed her motion. The AJ found that the incidents
were each discrete acts and complainant was required to bring them to
the attention of an EEO counselor within the regulatory time frame.
With respect to the last incident which occurred on July 15, 2004, the
AJ concluded that it was not like or related to the instant complaint
and should be processed as a separate complaint. For that reason, the
AJ denied complainant's motion to amend but granted complainant leave to
file a separate complaint as to her allegation surrounding the fitness
for duty examination.
Turning to the merits of complainant's complaint, the AJ found that
there were no genuine disputes of material fact to be resolved and a
decision without a hearing finding no discrimination was appropriate.
Specifically, the AJ found the evidence was undisputed that complainant
was treated no differently than other employees with respect to
disciplinary actions and measures taken to improve her performance.
For instance, S2 stated in his affidavit that he instructed several
clerks about the limit on breaks, not just complainant, because they
were taking more than the allotted time. The AJ further found that
there was no evidence other than complainant's speculation, that no
other employees had received letters of warning for similar kinds of
infractions for which she had received reprimands.
With regard to complainant's claim of retaliation, the AJ concluded
that there was no evidence that those supervisors cited as responsible
for the alleged harassment were aware of her participation in protected
EEO activity or that they had been influenced by S1 who was aware of
such activity. Additionally, the AJ found that there was no evidence
that any of the alleged incidents were motivated by discrimination based
on complainant's race or sex.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in finding that there was
no genuine issue of material fact concerning the fact that the agency
retaliated against her because several of the agency's adverse actions
occurred in close proximity to her report of offensive sexual conduct
in the workplace. She contends that the evidence demonstrated that the
agency's actions were based on her protected status as set forth in her
Opposition to the Agency's Motion for a Decision without a hearing.
Complainant also contends that the AJ erred in denying her motion to
amend the complaint for being filed in an untimely manner.
The agency argues that the AJ's decision was correct and should be
affirmed based on reasons set forth in its motion for a decision without a
hearing. The agency contends that complainant never engaged in protected
activity because she did not allege that she had been sexually harassed
nor did she allege that the conduct at issue was unwelcome to either
of the individuals involved. Additionally, the agency argues that the
work place incidents at issue did not involve the upper level manager
with whom complainant voiced her objections and therefore, there could
not have been any retaliation taken against her.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "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").
ANALYSIS AND FINDINGS
As an initial matter, we address the AJ's decision to deny complainant's
motion to amend the instant complaint to add several additional incidents.
Generally, an AJ has the power to regulate the conduct of a hearing
and proceedings leading to the hearing absent abuse of discretion.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), ch.7-8 pg. (November 9, 1999). Applying this principle,
complainant has offered no good reason to disturb the AJ's decision to
deny complainant's motion to amend the complaint. In addition, she has
not refuted that her motion was not raised in a timely manner, nor has
she offered any reason for the delay.
We agree that three of the incidents raised during the course of the
pre-hearing proceedings were discrete acts which should have been raised
within the time prescribed by our regulations. 29 C.F.R. � 1614.105(a)(1);
See Morgan v. National Railw'y Passeng'r, 122 S.Ct. 2061 (June 10, 2002).
We agree, therefore, with the AJ's decision to deny the amendments with
exception of the last, timely raised incident involving a referral for
a fitness for duty examination.
We turn now to 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.
In this regard, we agree with the AJ that even when viewing the evidence
in the light most favorable to complainant, she has failed to produce
sufficient evidence that the agency's actions may have been motivated by
discrimination on any of the alleged bases. In this case, complainant
alleged she was subjected to illegal harassment based on her race, sex
and in retaliation for her protected EEO activity when she was issued
various levels of disciplinary actions. The protected activity she
asserted was her reporting of inappropriate sexual conduct between a
co-worker and a supervisor. However, a review of the record demonstrates
that other than her bare statements, complainant did not refute the
agency's reasons for issuing her disciplinary action. For instance,
S2 stated that he gave complainant a letter of warning because of her
poor conduct when she "yelled" at the Postmaster and when she would not
respond to a directive to return to her work area.
S3 recounted that she issued complainant a letter of warning because of
her poor work performance but complainant did not specifically respond
to this evidence or offer any evidence that S3 should not be believed.
She also did not deny that she had engaged in the conduct asserted. In
addition, S3 gave reasons for auditing complainant's work flow to
which complainant offered no response. Specifically, S3 stated that
complainant's poor work habits and inefficient use of time prompted
her to request an audit of her daily tasks and to develop a flow chart
to instruct her how to improve her performance. The agency presented
evidence that others outside of complainant's protected class were also
given flow charts to improve their performance. Complainant offered no
evidence to the contrary or evidence that discriminatory factors more
likely motivated the agency's actions.
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). Complainant had sufficient opportunity to engage in
discovery as she was given ample time to obtain evidence supportive of her
allegations based on the AJ's order establishing a period for discovery.
(See Acknowledgement Order dated March 3, 2004). Even with this period
of discovery, complainant was unable to proffer evidence sufficient to
create a genuine issue of material fact that the agency's actions were
based on her membership in a protected class.
Turning to complainant's claim of retaliation and in accordance with
the burdens set forth in McDonnell Douglas supra, Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of
Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997) Whitmire
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September
25, 2000), we affirm the AJ's determination that complainant failed
to establish a genuine issue of fact that the agency's managers were
motivated by retaliation for her report of improper sexual conduct on
the part of co-workers. Complainant simply failed to come forward
with evidence that S2 and S3 were even aware of complainant's protected
activity or that they were improperly influenced by S1, who was aware.
As a result, the evidence was insufficient to create a triable issue
that they were motivated by retaliation.
Finally, there being insufficient evidence that the agency's actions
were motivated by discriminatory animus on any of the alleged bases,
we are unable to find that complainant met her burden of demonstrating
that the agency's actions amounted to illegal harassment.2
CONCLUSION
Based on the foregoing analysis and considering complainant's statement
on appeal and the agency's response in opposition thereto, the
Commission concludes that the AJ's decision without a hearing finding
no discrimination was appropriate. Therefore, we affirm the agency's
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
_ 2/28/07_________________
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced number.
2 According to the substantive law governing claims of harassment,
complainant must show 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).
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0120051916
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120051916