Karen L. Courvell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionSep 18, 2009
0120082487 (E.E.O.C. Sep. 18, 2009)

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