Joann I. Woods, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionSep 4, 2009
0120081094 (E.E.O.C. Sep. 4, 2009)

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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