0120082487
09-18-2009
Karen L. Courvell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Karen L. Courvell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120082487
Hearing No. 310-2005-00398X
Agency No. 4G-770-0211-05
DECISION
On May 5, 2008, complainant filed an appeal from the agency's April
2, 2008 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. 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
1. Whether the Administrative Judge (AJ) properly issued a decision
without a hearing.
2. Whether the AJ properly found that complainant was not subjected to
discrimination on the bases of race, sex, and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a city carrier at the Baytown, Texas Post Office. The record reveals
that complainant was assigned to deliver mail on a route that included
the Town Homes of Bayforest (the Town Homes). On October 5, 2004,
an altercation occurred between complainant and Town Homes residents
while complainant delivered mail to the Town Homes. On October 27, 2004,
management met with complainant and proposed her removal. On November 3,
2004, complainant's supervisor issued complainant a notice of removal
for improper conduct, effective December 10, 2004.
On July 25, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (Caucasian), sex
(female), and in reprisal for prior protected EEO activity when the
agency terminated her effective December 10, 2004 after it issued her
a notice of removal on November 3, 2004.
In an investigative affidavit, complainant stated that on October 5, 2004,
"three black women" tried to "start trouble" with her while she delivered
mail, and she asked them to leave the mail boxes where she delivered mail.
Affidavit A, p. 3. Complainant stated that she asked the manager of
the Town Homes to ask the women to leave, but the women did not leave.
Complainant stated that she did not want to fight or argue, but the Town
Homes residents wanted to fight and argue. "I have said some things,
done some things, but these people falsified a lot of info to hurt me
and get me fired," complainant stated. Affidavit A, p. 3.
Complainant further stated that the agency did not give her a
discussion or pre-disciplinary interview regarding the incident.
Complainant further alleged that a black female co-worker "babysits"
her children while at work without being disciplined, and management
used profanity and engaged in illegal drugs and sexual activity in order
to get promoted. Complainant also alleged that a male employee told
sexual jokes, propositioned her, and had an affair with his secretary but
was not disciplined by management. Complainant also indicated that a
female co-worker falsified arbitration documents and lied on behalf of
her husband.
Complainant's supervisor stated that he terminated complainant because she
was verbally and physically abusive towards customers and co-workers. The
supervisor stated that he and the Station Manager made the decision to
terminate complainant. The Station Manager stated that complainant
was terminated because she was involved in an incident on her route
with customers and displayed conduct "unbecoming a postal employee."
Affidavit C, p. 4. She stated that an investigation was conducted,
and statements were taken from the customers that supported the removal
of complainant. The Station Manager stated that customers reported that
as they waited for complainant to deliver their mail, complainant called
customers 'bitches," and asked a customer, "are you a boy or a girl or
are you a f _ ing f _ g _ t?" Affidavit C, p. 8.
The record indicates that the Postmaster intercepted complainant elsewhere
on her route and questioned her about the incident at the Town Homes.
Complainant informed the Postmaster that she had not delivered the mail
because residents stared at her. The Postmaster ordered complainant
to return to the Town Homes and complete the delivery of the mail, but
complainant responded, "I'm not going now, I might go later." Exhibit 2,
p. 2. The Postmaster again instructed complainant to complete delivery
of the mail, and accompanied her as she did so.
The Station Manager stated that complainant's actions were very
disrespectful and warranted more than just a reminder to be careful not to
misdeliver the mail. She stated that there were no other complaints of
similar behavior from any customers regarding her employees. The Station
Manager further stated that complainant was previously charged with
"saying something about blowing up the Post Office" prior to her
arrival at the Baytown Post Office. Affidavit C, p. 6. She stated
that the agency sought to remove complainant because of the incident,
but complainant won the arbitration on that matter.
The record contains a copy of the notice of removal issued to complainant
on November 3, 2004. The notice states that complainant was charged with
Improper Conduct/Disrespect to Customers. The notice sets out in great
detail the observations of those who witnessed complainant's statements
and actions on October 5, 2004. The notice indicated that the Town Homes
Assistant Manager told an agency official that complainant yelled at
residents while they waited for her to deliver mail and left the premises
without completing her delivery of the mail. Residents also stated that
complainant hurled a license plate at a resident and directed profanity
at them. Exhibit 2, p. 1. One resident reported that as she walked
into the complex office, complainant turned to her, pointed her finger,
and stated that she was not "finished with the f _ ing mail" and the
resident needed to get out of her way. Exhibit 2, p. 1. The Assistant
Manager of the Town Homes also reported that this was not the first time
complainant demonstrated this type of conduct, and in previous incidents,
complainant caused a disabled resident to cry and some residents were
afraid to check their mail because of complainant. Exhibit 2, p. 2.
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. On January 10, 2007, the agency issued a motion for
findings of fact and conclusions of law without a hearing. The motion
set forth matters that the agency maintained were undisputed material
facts and the reasons why the AJ should issue a decision without a
hearing in favor of the agency. Complainant did not submit a response
to the agency's motion for a decision without a hearing.
On March 3, 2008, the AJ issued a decision without a hearing in which
she found that complainant failed to prove that she was subjected to
reprisal or unlawful discrimination. The AJ determined that complainant
failed to establish a prima facie case of discrimination or reprisal.
The AJ further determined that complainant's failure to respond to the
agency's motion for a decision without a hearing left the record devoid
of any evidence of discriminatory animus or pretext. The AJ concluded
that complainant's "behavior transcended all bounds of decency and
required her removal." The agency subsequently issued a final order
fully adopting the AJ's finding.
CONTENTIONS ON APPEAL
In a brief statement on appeal, complainant contends that the AJ
improperly issued a decision without a hearing because there were
matters that were "hotly contested," including whether complainant
engaged in improper conduct; whether complainant threw a license plate
at customers; whether complainant's work performance was unsatisfactory;
whether complainant violated safety policies; and whether, complainant
reacted to customers without cause or because customers "assailed" her.
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").
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).
We find that the AJ properly issued a decision without a hearing because
complainant failed to show that a genuine issue of material fact exists
or that there were any credibility determinations such that a hearing
on the merits was warranted.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of analysis, we assume arguendo that complainant established
a prima facie case of discrimination and reprisal. Nonetheless, we
determine that the agency provided legitimate, non-discriminatory reasons
for its actions. Specifically, agency management stated that complainant
was terminated because she displayed disrespectful and improper conduct
toward customers in an October 5, 2004 altercation, as detailed above.
On appeal, complainant contends that there are issues that are "hotly
contested" by the parties which make the issuance of a decision without
a hearing inappropriate. However, we note that complainant was afforded
the opportunity to challenge the agency's contentions by responding to
its motion for findings of fact and conclusions of law without a hearing,
but complainant did not respond to the agency's detailed accusations
regarding her conduct. Except for denying that she threw a license
plate, complainant only generally and broadly asserts on appeal that
that there are genuine issues of material fact in dispute in this case.
Significantly, even assuming that complainant did not throw the license
plate at the resident as alleged, complainant has not specifically
denied that she yelled at customers, used profanity and epithets against
customers, had a history of prior discipline for improper conduct,
or left the premises of Town Homes without delivering mail. Likewise,
in her investigative statement, complainant broadly stated that she has
"said some things, done some things," but her accusers falsified some
details. We remind complainant that the non-moving party's opposition to
a decision without a hearing must consist of more than mere unsupported
broad allegations or denials; it must be supported by competent evidence
setting forth specific facts showing that there is a genuine issue
for trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477
U.S. 317, 324, (1986). Thus, we determine that complainant's nebulous,
generalized partial denials of specific accusations against her are not
sufficient to prove that the agency's non-discriminatory explanations
are pretext for unlawful discrimination. Consequently, we find that
the AJ properly found no discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that discrimination occurred.
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
_____9/18/09______________
Date
2
0120082487
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120082487