0120070815
12-03-2008
Kathleen Galloway, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathleen Galloway,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070815
Hearing No. 330-2005-00097X
Agency No. 4G-770-0337-04
DECISION
On November 27, 2006, complainant filed an appeal from the agency's
October 18, 2006 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. For the following reasons, the Commission AFFIRMS the
agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a General Clerk, Vehicle Maintenance Facility, PS-05, at the agency's
work facility in Beaumont, Texas.
On August 17, 2004, complainant filed an EEO complaint wherein she claimed
that she was discriminated against on the bases of race (Caucasian) and
sex (female) when she was subjected to sexual harassment and a hostile
work environment. The incidents cited by complainant were as follows:
1. Her supervisor instructed her to weekly deposit her soiled uniforms
in a hamper that was located in the men's restroom.
2. Her supervisor instructed her to read the Daily Log daily; however,
he kept it locked and about twice a week he would leave the building.
3. On May 17, 2004, her supervisor told her coworkers that the stockroom
has been a mess since complainant got here.
4. On May 28, 2004, complainant was unable to locate the keys to the
truck she used to travel to Houston because her supervisor had them in
his pocket and he gave her a discussion about her clock rings.
5. On June 2, 2004, her supervisor told her that her work performance
was poor and she was not following instructions because she did not
print out his daily log.
6. On June 14, 2004, complainant needed to go to Houston to perform VMAS;
however, the truck was not there and her supervisor called her into his
office for another discussion of record for poor performance and failure
to follow instructions.
7. On June 21, 2004, her supervisor had the mechanics put two wooden
pallets on the back of the truck and instructed her to put them on the
back dock, which is not in her job description.
8. On June 22, 2004, her supervisor had her put away the majority of
the hundred tires received in shipment.
9. On June 22, 2004, her supervisor told coworkers, while discussing
a barbecue, "I'll have [complainant] do the cooking. No, she doesn't
know how to do anything."
10. On June 23, 2004, her supervisor told coworkers that "the clerk is
just not working out."
11. On June 23, 2004, her supervisor issued new stockroom procedures which
caused her to ask to see her union steward about her job description.
Her supervisor then had another discussion of record with her about her
job performance and failure to follow instructions.
12. On June 25, 2004, she was delayed in leaving for Houston because
her supervisor had another discussion of record with her about her job
performance and failure to follow instructions.
13. On June 28, 2004, her supervisor gave her a discussion of record
because she transferred a call to him.
14. Her supervisor asked for a copy of her job description and implied
that she had lied in reference to her ability to the job.
15. Her supervisor deliberately overwhelmed her with work and deadlines
and 80% of the assignments were not in her job description.
16. Her supervisor hounded her about the batteries and the tire
inventories.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The agency filed a Motion for Findings
of Facts and Conclusion of Law Without a Hearing pursuant to 29
C.F.R. �1614.109(g). Complainant filed a Response. The AJ issued a
decision without a hearing finding no discrimination.
The AJ concluded that based on the record and complainant's deposition, no
genuine issues of material fact existed to hold a hearing. The AJ noted
that when complainant was directed to deposit her uniform in the hamper
located in the men's locker room, her supervisor ordered the hamper to
be moved to the stockroom and informed all employees of the same. The AJ
stated that complainant was never required to enter the men's locker room.
The AJ noted that subsequent to the filing of the complaint, the agency
promptly investigated complainant's claims and reassigned her supervisor.
The AJ concluded that complainant failed to demonstrate that she was
subjected to hostility because of her membership in a protected class.
According to the AJ, complainant admitted in her deposition that her
supervisor was not motivated by race when he informed her that she was not
performing her job well; not moving tires; and requiring her to deposit
her soiled uniforms in the hamper in the men's locker room. The AJ
further found that complainant had no evidence showing a connection
between race or sex regarding her supervisor's statements that the
stockroom was a mess; his meetings with her regarding her clock rings;
his instruction regarding daily logs; instructions requiring her to move
objects; his instructions regarding her obtaining assistance for her to
perform her job; the use of the agency truck; and giving her deadlines.
The AJ stated that complainant admitted that her supervisor granted
every request she made for an extension of deadlines.
The agency's final action implemented the AJ's decision. Thereafter,
complainant filed the instant appeal.
In response, the agency asserts that the instant appeal was filed three
days late and should be dismissed as untimely. The agency argues that
complainant received the final action on October 27, 2006, but did not
file her appeal until November 30, 2006. The agency maintains that even
if complainant was subjected to a hostile work environment when she was
instructed to deposit her uniform in the hamper located in the men's
locker room, her claim still fails because this event was not so severe
or pervasive as to create an environment that a reasonable person would
find hostile or abusive. The agency asserts that the supervisor was
not motivated by complainant's sex or race but rather he was attempting
to enforce the procedures that were in place well before complainant's
employment at the facility. The agency states that complainant conceded
that she was never required to enter the men's locker room, the agency
took immediate corrective action and she felt the agency handled the
situation properly.
Initially, we must address the agency's assertion that the instant appeal
was filed in an untimely manner. The record reveals that complainant
received the final action by certified mail on October 27, 2006.
Complainant filed the appeal on November 27, 2006, as reflected on the
envelope postmark. Pursuant to 29 C.F.R. � 1614.604(d), the filing on
November 27, 2006 was timely as that date was a Monday, the next business
day after the 30th day from receipt of the final action.
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. 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 AJ properly
found that there was no genuine issue of material fact in this case.
The evidence reveals that although complainant presented testimony in her
deposition that suggests a possible pattern of harassment against her by
her supervisor, the record discloses that the supervisor treated employees
outside her protected groups in a similar fashion. A male coworker stated
that the supervisor constantly told everyone that if they do not do their
jobs, the facility will close down. This coworker further stated that
the supervisor belittles facility employees. Another male coworker
stated that the supervisor has official discussions with employees
who make mistakes and do not follow his policies or instructions.
Neither coworker indicated that they believed the supervisor's treatment
of complainant was based on her sex or race.
Therefore, after a careful review of the record, including complainant's
submission on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's final action finding that no discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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
December 3, 2008
__________________
Date
7
0120070815
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036