0120142599
12-22-2016
Kasie L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kasie L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120142599
Hearing No. 410-2013-00263X
Agency No. 1K-303-0015-12
DECISION
On July 9, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 6, 2014, 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 complaint, Complainant worked as a Tour 2 Ramp Clerk at the Agency's Logistics and Distribution Center facility in Atlanta, Georgia. Complainant was issued notice that her position was being abolished starting in August 2012.
On October 17, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Her position was terminated and she became an unassigned regular with a different work schedule;
2. Complainant was not allowed to use an Agency vehicle to perform her duties;
3. Complainant was placed on Emergency Placement in an off-duty non-pay status; and
4. Complainant was issued a 14-day suspension for improper conduct, failure to follow instructions, and failure to cooperate in an Agency investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On December 23, 2013, the Agency filed a motion for summary judgment. In response, Complainant asked that the AJ deny the Agency's motion in her own motion on January 23, 2014. The AJ assigned to the case determined that the complaint did not warrant a hearing and issued a decision without a hearing on May 27, 2014. The AJ listed undisputed material facts. The AJ noted that Complainant worked as a Ramp Clerk in June 2012. By notice on June 7, 2012, the Agency notified that Complainant that her position was being abolished. Complainant noted that her employee ID, seniority date and position ID were listed incorrectly on that notice. She received another notice that her position was to be abolished and that she would become an unassigned regular to a Mail Processing Clerk effective August 11, 2012. The notice stated that "if [Complainant] fail[s] to accept an opportunity to return to the Ramp Clerk Tour 2 Section when it is available, retreat rights will be forfeited." The Manager stated that the assignment was based on the needs and provides staffing for the facility. Complainant refused to accept the notice in person but it was also delivered to Complainant via First Class Mail. This second notice also had the wrong employee ID and seniority date which was closer than the previous notice. Based on these errors, Complainant argued that her position was not abolished.
The AJ indicated that Complainant's argument was that others were permitted to maintain their Tour 1 Ramp Clerk positions even if they did not function as Ramp Clerks. She asserted that she was not the junior Ramp Clerk at the facility. The Manager noted that Complainant was on Tour 2; not Tour 1 and that she was the junior Ramp Clerk on her tour. Complainant attempted to list comparators and raised issues with grievances filed by others. The Agency produced documents showing they were not comparators. Complainant also argued that there were other Ramp Clerk positions to which she could have been reassigned but did not provide evidence to support her assertion. The AJ noted that Complainant provided two vacancy postings without providing the dates the vacancies were posted or filled. Further, any possible individuals who were "pending qualification" for the Ramp Clerk positions had more seniority than Complainant.
As to claim (2), the AJ indicated that Complainant wanted to ride along with a co-worker. The supervisor denied the request finding it senseless. Complainant argued that others were permitted to do so. On August 11, 2012, Complainant did not report to work at 8:30 p.m. as instructed. She was seen entering at 6:00 a.m., hit the clock, and left on two occasions. Management tried to speak with her but she replied that she would only speak with a union steward. Management informed her that she would be placed on Emergency Placement if she did not report to work at her designated time. On August 15, 2012, the Manager noticed that Complainant signed out a vehicle after he had instructed the maintenance department not to do so since she was no longer a Ramp Clerk. Complainant did not report to work for three straight days. Complainant was placed on Emergency Placement from August 15, 2012, to September 5, 2012. Management sent Complainant an Official Directive to report to work on August 20, 2012. Complainant continued her unscheduled absences. On August 31, 2012, Management sent Complainant another Official Directive to report to work on September 5, 2012, for an investigative interview. Complainant was issued a 14-day suspension starting September 29, 2012, when she failed to attend the investigative interview. She was charged with improper conduct, failure to follow instructions and failure to cooperate with a postal investigation.
A Ramp Clerk informed the Agency that he intended to retire on October 22, 2012, with his effective retirement of January 31, 2013. His last day in pay status was November 1, 2012. On December 26, 2012, the Agency notified Complainant of her retreat rights for this position effective December 29, 2012, which she took.
Based on these facts, the AJ issued his findings regarding Complainant's claims of discrimination. The AJ held that Complainant failed to establish her prima facie case of discrimination based on her race, sex, and/or prior EEO activity. Further, the AJ held that the Agency provided legitimate, nondiscriminatory reasons for its actions. As to claim (1), the AJ held that Complainant's position was abolished based on the reduction of staff on Tour 2. As to claim (2), the Agency refused to let Complainant drive a vehicle because her co-worker was able to perform the assignment alone. Further, Complainant was no longer a Ramp Clerk and did not need a vehicle. Complainant was placed on Emergency Placement and the 14-day suspension, the AJ noted that Complainant reported to work to simply clock in and leave the facility on two occasions and then refused to report to duty for several days without notifying Management. Based on Complainant's improper conduct, her failure to follow instructions, and failure to cooperate with its investigation, the Agency placed her in Emergency Placement and subsequently issued Complainant the suspension as alleged in claims (3) and (4). The AJ concluded that the Agency met its burden.
The AJ then turned to Complainant to show that the Agency's reasons constituted pretext for discrimination. The AJ concluded that Complainant failed to do so. In response to claim (1), the AJ found that Complainant did not show that the Agency lacked the discretion to decide which shift needed a Ramp Clerk. As for claim (2), the AJ noted that Complainant's actions were as if she were still a Ramp Clerk, a position from which she had been reassigned. Finally, in response to claims (3) and (4), the AJ found that Complainant did not deny her actions and felt a sense of justification in her actions. As to the reinstatement of Complainant to her Ramp Clerk position, the AJ did not find that Complainant provided any evidence to show that the Agency delayed in placing her in the position. Based on the record, the AJ concluded that Complainant failed to show that the Agency's reasons constituted pretext for discrimination based on her race, sex, and/or prior EEO activity.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed asserting that the AJ erred in issuing a decision without a hearing in favor of the Agency. Complainant argued that the Agency's witnesses were not credible and alleged her evidence proved so. Complainant reargued her claims that the abolishment notice was not correct and therefore, her position was not abolished. She also asserted that she established that the Agency's actions constituted unlawful discrimination and harassment. As such, she requested that the Commission overturn the AJ's decision.
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.
Complainant argued that the Agency's witnesses were not credible. However, we find that she has not substantiated her assertion. Furthermore, 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.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ properly concluded that the Agency provided legitimate, nondiscriminatory reasons for its actions. Further, the record supports the AJ's finding that Complainant failed to show that the Agency's reasons constituted pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action implementing the AJ's decision finding no discrimination without a hearing.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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
December 22, 2016
__________________
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.
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