0120090216
02-25-2009
Joan H. Auzenne, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joan H. Auzenne,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090216
Agency No. 1G-708-0016-07
Hearing No. 461-2008-00070X
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. Complainant alleges discrimination
on the bases of sex (female) and in reprisal for prior protected EEO
activity when:
1. On August 6, 2007, the employee who had sexually harassed complainant
was returned to complainant's tour.
2. On August 6, 2007, complainant was placed in Emergency Placement
non-duty, no-pay status.
3. On September 21, 2007, complainant was issued a Notice of Removal.
On September 8, 2008, an EEOC Administrative Judge (AJ) issued a decision
without a hearing finding that there was no genuine issue of material fact
in dispute, and concluded that complainant had not been discriminated
against. Specifically, the AJ found the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On September 16 2008, the agency issued a decision finding
no discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that decision.
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, summary judgment
is not appropriate. 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.
We find that the agency has articulated a legitimate, nondiscriminatory
reason for its actions. Regarding claim 1, the agency asserted that it
took immediate and appropriate corrective action as soon as it was put
on notice of the harassment. Upon learning of the conduct, the agency
claimed that it took the following actions: 1) immediately removed the
harassing co-worker from complainant's tour for a five-month period;
2) immediately initiated an investigation; 3) issued the harassing
co-worker a 14-day suspension that specifically identified the harassing
conduct as the charge, and reminded him of his responsibilities to modify
the workplace behavior under threat of further disciplinary action; 4)
elicited from the harasser an apology for his behavior and commitment not
to have any further contact with complainant; 5) instituted facility-wide
service talks on sexual harassment in the workplace; and 6) returned
the harasser to the same tour as complainant, but insured that their
duties would make contact between the two unlikely. The agency asserted
that, by these actions, the agency satisfied its duty to investigate the
allegations promptly and thoroughly by putting an end to the harassment,
and taking remedial measure to insure the harassment would not recur.
The agency stated that the harasser did not have any contact with
complainant after he was returned to her tour and facility.
As to claim 2, the agency stated that they are obligated to provide a safe
and secure environment for all employees, and it honors its obligations
by enforcing a policy of zero tolerance of workplace violence, including
threats of workplace violence. The agency reported that, although
complainant may have felt the agency failed to honor its obligations
to protect her when it returned the harasser to her tour, it does not
entitle complainant to threaten the harasser's life. The agency said that
complainant repeatedly told the Supervisor of Distribution Operations
(SDO) and the Manager of Distribution Operations (MDO) that she would
kill the harasser if the harasser was returned to the facility.
With respect to claim 3, the agency stated that the agency's Threat
Assessment Team and its Inspection Service investigated the matter and
interviewed complainant. The agency claimed that complainant admitted to
her threat, and continued to insist to the Threat Assessment Team that she
could not work in the same facility as the harasser. The agency's Threat
Assessment Team advised management to consider disciplining complainant.
Significantly, the agency asserted that they rescinded the Notice of
Removal and permitted complainant to accept her bid position at another
facility.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for its actions. Furthermore, complainant
failed to show, by a preponderance of the evidence, that complainant
was discriminated on the bases of sex or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
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 (S0408)
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 (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
February 25, 2009
__________________
Date
2
0120090216
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090216