01A44427
04-07-2006
Hermina Baliton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Hermina Baliton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44427
Hearing No. 370-2003-02582X
Agency No. 1F-946-0023-03
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of 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. 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.
The record indicates that complainant worked as a Mail Processing Clerk.
She operated an Automated Flat Sorting Machine (AFSM). Her supervisors
included A-1 and A-2. On November 2, 2002, A-1 spoke with complainant
about the unauthorized use of overtime. According to A-1, he noticed that
complainant had worked a full overtime shift without authorization the
night after she had called in sick for her regular shift. A-1 felt that it
was inappropriate for her to work overtime under these circumstances. A-1
did not recall yelling at complainant. On November 16, 2002, A-1 again
spoke to complainant after he received a report that she had allegedly been
"gossiping" about her co-workers.
A-2 spoke to complainant, on November 9, 2002, after he observed her
talking with her co-workers instead of performing her job duties.
According to A-2, he approached complainant and asked her if she was having
problems. Complainant indicated that her console kept jamming. A-2 asked
a technician to examine the machine, but the technician reported that the
console was working properly. A-2 told complainant that she needed to
limit her conversations. According to A-2, complainant responded,
"Whatever." Upon returning to the area where complainant worked, A-2
stated that he again observed complainant talking to her co-workers and not
working. A-2 approached complainant and was told that her console was
jamming again. A-2 asked the technician to re-examine the machine and
again was told that it was working properly. After briefly instructing
complainant on how to operate her machine, A-2 informed her that she would
be sent for re-training. The next night, November 10, she viewed a video
on the duties and responsibility of an AFSM operator. A-2 also denied
yelling at complainant.
With regard to complainant's allegation that she was denied a reasonable
accommodation, the record indicates that complainant was involved in a car
accident. Due to thigh and leg injuries, she was unable to walk very fast
and had leg pain. Complainant maintained that A-1 was aware of her medical
situation. A-1 and A-2 stated, however, that they were not aware. In May
2003, complainant requested a limited duty position. Her limitations were:
standing - 4 hours; walking 8 hours; lifting 5 pounds maximum; reaching
above the shoulders - frequently; and simple grasping and repetitive motion
- occasionally. On May 9, 2003, the agency offered complainant a limited
duty position that accommodated her limitations. Complainant accepted the
position.
Complainant filed a complaint alleging that she had been discriminated
against and subjected to a hostile work environment on the bases of her
race (Asian), sex (female), national origin (Filipino), disability
(emotional stress, thigh and leg injuries) and/or in retaliation for
engaging in prior EEO activity when: (1) on November 2, 2002, A-1 yelled at
her; (2) on November 9-10, 2002, A-2 yelled at her; and (3) the agency
failed to provide her with a reasonable accommodation for her disability.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing, finding no
discrimination. The agency's final order implemented the AJ's decision.
The AJ concluded that the actions of A-1 and A-2 did not rise to the level
of creating a hostile working environment. She found that these were the
type of ordinary supervisory actions that are expected of management
officials under such circumstances. The AJ also found that the undisputed
evidence of record did not support a finding that any of these incidents
were motivated by any unlawful reason, i.e., complainant's race, sex,
national origin, disability or previous protected EEO activity.
The AJ also found that the record did not support a finding that
complainant was denied a reasonable accommodation. The AJ found that
complainant did not establish that she was entitled to a reasonable
accommodation because the record did not establish that her impairments
constituted a disability within the meaning of the Rehabilitation Act. The
AJ noted, however, that the agency offered complainant a limited duty
position shortly after she requested it in May 2003. There was no record
of an earlier request for an accommodation by complainant.
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, a
decision without a hearing is not appropriate. In the context of an
administrative proceeding, an AJ may properly consider issuing a decision
without 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); Murphy v. Dept. of the
Army, EEOC Appeal No. 01A04099 (July 11, 2003).
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 will 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").
We find that, even assuming complainant was able to establish prima facie
cases of race, sex, national origin, disability and reprisal discrimination
and construing the evidence in this case in a light most favorable to her,
the AJ properly determined that there were no genuine issues of material
fact and that summary judgment in the agency's favor was appropriate.[1]
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
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
___04-07-06_______________
Date
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[1] Although the Commission does not condone a supervisor yelling at an
employee, we note that complainant failed to show that she suffered a harm
or loss with respect to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Nothing in the file shows that
complainant received discipline, a loss of wages or any other adverse
employment action as a result of her workplace interactions with A-1 and A-
2. Furthermore, although complainant claimed that the incidents
constituted harassment, the Commission does not find that these matters
were sufficiently severe or pervasive to alter the conditions of her
employment such as to state a claim of harassment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). As for the accommodation
issue, we find that although management may have been aware that
complainant was in a car accident, there is no persuasive evidence that
they were aware of her need for an accommodation until her May 2003
request. There is no dispute that, upon receiving the request, management
provided a limited duty position that complied with complainant's
restrictions.