0120090270
02-02-2009
Katherine M. Murphy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Katherine M. Murphy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090270
Hearing No. 510200800217X
Agency No. 4A006009407
DECISION
On October 21, 2008, complainant filed an appeal from the agency's
September 18, 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.
BACKGROUND
Complainant worked as a Postmaster at the agency's Guayala, Puerto
Rico facility. On or about December 2006, complainant requested that
the agency place her in non-pay status from December 23, 2006, until
approximately May 21, 2007. During the five-month period that followed,
complainant sought and obtained a reassignment to a different postal
facility in Washington, D.C. On April 29, 2007, complainant sent an
email to her supervisor in the Guayala facility and advised him that she
had accepted a position in Washington D.C. and that she was eligible for
relocation benefits. She also informed him that she would be forwarding
a leave form and requested his assistance in ensuring that she was paid
for the days that she was seeking other employment opportunities within
the agency and for federal holidays.
Complainant's supervisor asserts that complainant never filled out the
proper forms in order to receive relocation benefits. Further, the
supervisor asserts that complainant failed to submit any documentation to
verify that she spent the work hours she claimed seeking other employment
opportunities with the agency. As a result, complainant's wage claim
was not timely processed.
Ultimately, an agency Financial Services Analyst (FSA) flew to Washington
D.C., met with complainant, and approved payment for twenty-four of the
twenty-five days complainant claimed for payment. The FSA also found
that because complainant was in non-pay status, she was not entitled to
holiday pay. Further, the FSA found that complainant failed to file the
proper forms with her supervisor. In November 2007, complainant received
payment for the wages to which the FSA had determined she was entitled.
Complainant asserts that her supervisor in Guayala purposely delayed
her payment in retaliation for her prior EEO activity.
On October 14, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when, on or
about April 27, 2007, the agency failed to pay her for twenty-five days
of work related to her advance trip for relocation to the Washington
D.C. area, two holidays, one national day of mourning, and sixteen work
days, all of which occurred between January 15 and May 21, 2007.
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. Over the complainant's objections, the AJ assigned
to the case granted the agency's June 13, 2008 motion for a decision
without a hearing and on August 21, 2008 issued a decision without a
hearing in the agency's favor. 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.
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).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
After a careful review of the record we find that the record has been
adequately developed, complainant was given notice of the agency's motion
to issue a decision without a hearing, she was given an opportunity
to respond to the motion, she was given a comprehensive statement of
undisputed facts, and she had the opportunity to engage in discovery.
To prevail in a disparate treatment claim alleging reprisal
discrimination, the complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The complainant must initially establish a
prima facie case by demonstrating that 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,
the 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); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995).
In applying the disparate treatment analysis of McDonnell Douglas Corp.,
the prima facie inquiry may be dispensed where the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983). To ultimately prevail, the complainant must prove, by a
preponderance of the evidence, that the agency's explanation is a pretext
for discrimination. 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); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981).
Here, the agency articulated legitimate, nondiscriminatory reasons for
delaying complainant's wage claim. Specifically, complainant did not
submit the proper paperwork to her supervisor. Additionally, the FSA
flew to Washington D.C. to meet with complainant in order to determine
what wages complainant was due. Further, complainant was not entitled
to pay for holidays because she was in non-pay status, and she was only
able to prove that she sought agency employment for twenty-four of the
twenty-five days for which she had claimed compensation.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated reasons are pretext for discrimination.
Complainant failed to establish that she submitted the correct forms to
her supervisor as alleged. Further, we agree with the AJ that it appears
the delay in payment was more likely the result of miscommunication
between complainant and the supervisor, and not because of discriminatory
animus. Finally, the record supports the agency's assertion that
complainant was not eligible for reimbursement of holiday pay because she
was in non-pay status, and she was not able to provide documentation for
one of the twenty-five days for which she claimed compensation. There is
nothing in the record that would establish that the agency's actions were
more likely than not the result of retaliation. Therefore, we find that
complainant failed to establish her claim of unlawful discrimination.
CONCLUSION
We AFFIRM the agency's final order because a preponderance of the evidence
in the record does not establish that discrimination existed as alleged.
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
February 2, 2009
Date
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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