0120160217
04-03-2018
Karin C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karin C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160217
Hearing No. 451-2013-00214X
Agency No. 4G-780-0079-13
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's October 13, 2015 timely appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 10, 2015 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.
BACKGROUND
At the time of events giving rise to this equal employment opportunity (EEO) complaint, Complainant was employed by the Agency as a full-time City Carrier, pay grade 01/O, at the New Braunfels Post Office in New Braunfels, Texas.
On March 29, 2013, Complainant filed a formal complaint alleging that she was discriminated against based on her sex and reprisal for participation in prior EEO activity under Title VII when after reporting on February 12, 2013, that she was harassed by Coworker 1 (male), management mishandled the matter, including subjecting her to a Pre-Disciplinary Interview (PDI) and threatening her with discipline if she continued to complain.
Following an investigation, Complainant requested a hearing before an AJ. After the completion of discovery, the AJ issued a summary judgment decision finding no discrimination.
The AJ captured the definition of the complaint as recounted above. The incident Complainant reported occurred on February 12, 2013. Specifically, the building exit door to the mail trucks was propped open. People outside rounding a corner to enter the building through the exit door could not see people are exiting the same door until they enter. It is common practice for people outside the building to enter through the exit door. A Letter Carrier Union Steward rounded the corner side by side with Coworker 1 (male), with Coworker 1 on the inside.
With extensive cites to the record, the AJ wrote the following. Complainant alleged that she was inside the building and as she came out through the exit door Coworker 1 was using the same door to enter moved in this and that way as if to block her, and he bullied her. Complainant immediately reported the incident to her Postmaster (male) (her second line supervisor). The Postmaster immediately directed the Supervisor of Customer Service (male) (Complainant's first line supervisor) to investigate the incident, which was done the same day. They obtained verbal and written statements from Coworker 1, the Union Steward, and another witness, a letter carrier. The information below was gathered on February 12, 2013. Coworker 1 wrote "She was coming out I was coming in. She said it was an exit. I didn't say a thing. I didn't touch her or get near her or say anything to her. I backed off she went out I went in." The Union Steward verbally told the Postmaster that he was walking with Coworker 1 when the incident occurred, and from his perspective it was wholly an accident.2 The other witness wrote "Several people [were] coming in the out door. I was following the group...."
The AJ found as follows. The Postmaster determined that the incident was just a misinterpreted occurrence. No PDI or discipline was given for this incident. Rather, the PDI Complainant received on February 12, 2013, was previously scheduled and completely unrelated to the February 12, 2013, incident. Even assuming the door incident occurred as Complainant alleged, it did not rise to the level of actionable harassment. Although Complainant contended that the Agency mishandled her report on Coworker 1, the evidence showed that upon receiving her report, the Agency immediately investigated the matter, and therefrom determined it was a misinterpreted incident. Even considering the Postmaster's alleged statement that corrective action would be pursued for issues like this because he "could not have time to police the exit and entrance doors," the record was insufficient to support a showing of pretext.
In its final action, the Agency fully implemented the AJ's decision. The instant appeal followed. On appeal, Complainant largely raises incidents that were not part of her complaint. In opposition to the appeal the Agency argues that its final action should be affirmed.
ANALYSIS AND FINDINGS
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
We find that the Agency's definition of Complainant's complaint, which the AJ used, was a fair reading of the complaint. We find, for the same reasons as the AJ, that Complainant failed to prove discrimination and reprisal.
The Agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 3, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In his subsequent EEO investigative affidavit, the Union Steward stated that he moved out of the way because he was on the outside of Coworker 1, so Coworker 1 came face to face with Complainant purely by accident, and he moved and there was no contact.
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