0120081094
09-04-2009
Joann I. Woods, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Joann I. Woods,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120081094
Hearing No. 240-2006-00013X
Agency No. 4J-460-0059-05
DECISION
On December 29, 2007, complainant filed an appeal from the agency's
November 28, 2007 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 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.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's (AJ)
issuance of a decision without a hearing on the merits of the complaint
was appropriate; and (2) whether complainant established that she was
subjected to a hostile work environment.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a City Carrier at an agency facility in Valparaiso, Indiana.
On May 10, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of sex (female) and age (41 years
old at the time of the incidents) when:
(1) On January 6, 2005, she was instructed to take all her mail out
while others did not carry their curtailed mail;
(2) On January 7, 2005, she was demeaned about her work performance and
compared to a younger sub;
(3) On January 15, 2005, she was instructed not to break down and prepare
her circulars;
(4) On January 18, 2005, she was denied an opportunity for overtime on
her own route;
(5) On January 19 and January 24, 2005, she was instructed to deliver
curtailed mail before casing her route;
(6) On January 20, 2005 she was harassed about being slow in her mail
delivery and request for auxiliary help; and
(7) On February 14, 2005, she was hassled by management about an approved
absence.
On May 20, 2005, the agency issued a Notice of Partial
Acceptance/Dismissal accepting allegation (4) for investigation
and dismissing the remaining allegations pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. At the conclusion of the
investigation, complainant was provided with a copy of the report of
investigation and a notice of her right to request a hearing before
an EEOC Administrative Judge (AJ). On October 17, 2005, the agency
determined that complainant failed to request a hearing, or a final
agency decision without a hearing, and issued a decision finding
no discrimination. Woods v. United States Postal Service, Agency
No. 4J-460-0059-05. On appeal, the Commission found that complainant had
requested a hearing in a timely manner and vacated the agency's decision
on the merits of complainant's complaint. Woods v. United States Postal
Service, EEOC Appeal No. 01A61047 (April 21, 2006). The Commission
remanded the case to the agency and ordered the agency to forward the
case for a hearing in accordance with 29 C.F.R. � 1614.109. Id.
On remand, the AJ reviewed the investigative record and determined that
the agency had improperly fragmented complainant's complaint. The AJ
determined that complainant was actually alleging that she was subjected
to a continued pattern of discriminatory harassment. On October 23,
2006, the AJ issued a Prehearing Rulings Order re-defining complainant's
claim as:
Whether from January 6, 2005 through April 2005 (the date of the formal
complaint), the complainant was subjected to harassment because of her
sex and/or age.
The AJ's Order required, in pertinent part, that the parties "complete
timely discovery" and, due to the "re-framing" of the issue, allowed
the agency to re-file its motion for summary judgment.1 Over the
complainant's objections, the AJ assigned to the case granted the agency's
November 9, 2006 motion for a decision without a hearing and issued
a decision without a hearing on November 19, 2007. The AJ's decision
found that complainant failed to establish that she was subjected to
harassment based on her sex and age. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that she was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in issuing a decision
without a hearing because there are genuine issues of material fact
in dispute. She argues that she was subjected to severe and pervasive
harassment for three years and reiterates arguments made below. She also
submits new witness affidavits and expresses disappointment in the manner
in the way her case was handled by the AJ.2
In response, the agency urges the Commission to affirm its final
decision. The agency argues that complainant failed to establish that
she was subjected to discrimination, objects to complainant's attempt
to introduce new evidence on appeal, and contends that her accusations
of judicial bias are without merit.
ANALYSIS AND FINDINGS
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").
We must first determine 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.
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).
On appeal, complainant argues that the evidence establishes a genuine
issue of material fact as to whether she was subjected to severe and
pervasive harassment based on her sex and age. After a careful review
of the record, the Commission finds that the AJ appropriately issued a
decision without a hearing, as complainant failed to proffer sufficient
evidence to establish that a genuine issue of material fact exists such
that a hearing on the merits is warranted.
Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998);
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). To establish a prima facie case of harassment, complainant
must show that: (1) she is a member of a statutorily protected class
and/or was engaged in prior EEO activity; (2) she was subjected to
unwelcome verbal or physical conduct related to her membership in that
class and/or her prior EEO activity; (3) the harassment complained of
was based on her membership in that class and/or her prior EEO activity;
(4) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Roberts v. Department of Transportation,
EEOC Appeal No. 01970727 (September 15, 2000) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct
is to 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).
The Commission concurs with the AJ's determination that complainant failed
to establish a prima facie case of harassment. Complainant argues on
appeal that her supervisor subjected her to harassment by questioning her
work performance, commenting to younger, male co-workers about the length
and frequency of her bathroom breaks, and attempting to "exert power or
control" over her. However, complainant failed to provide any evidence
that the alleged harassment occurred because of her sex or age. We note
that the majority of complainant's allegations pertain to criticism of
her work performance. We further note that complainant argues that she
was sometimes singled out by her supervisor to do more difficult work
duties than her co-workers, such as taking out all of her mail while
others did not carry their curtailed mail, but that official supervised
both male and female employees, some of whom were older than complainant.
While the record strongly suggests that complainant did not get along with
her supervisor, EEOC regulations are not to be used as a "general civility
code." Rather, they forbid "only behavior so objectively offensive as to
alter the conditions of the victim's employment." Oncale, 523 U.S. at 81.
In viewing the events as a whole, complainant has not established the
incidents had the purpose or effect of unreasonably interfering with
her work performance and/or creating a hostile work environment.
Finally, with respect to complainant's contention that the AJ somehow
mishandled her case, we find no evidence in the record that the AJ
processed complainant's case in an improper manner or demonstrated a
"bias" against her. See 29 C.F.R. � 1614.109.
CONCLUSION
Summary judgment was appropriate in this case because no genuine issue
of material fact is in dispute. Complainant also failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus towards her. We discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, the agency's final
order 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
_______9-04-09___________
Date
1 The agency had previously submitted a motion for summary judgment.
2 As a general rule, the Commission will not consider new evidence on
appeal unless there is an affirmative showing that the evidence was not
reasonably available prior to the investigation or during the hearing
process. EEO Management Directive 110, Chapter 9 � VI.A.3 (1999).
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0120081094
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081094