0120072444
07-23-2009
Laurie Hulmston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Laurie Hulmston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072444
Hearing No. 540200600108X
Agency No. 4E840000106
DECISION
On April 26, 2007, complainant filed an appeal from the agency's April
2, 2007 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Part-Time Flexible (PTF) carrier at the agency's Ogden, Utah facility.
On December 20, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of sex (female), disability
(knee injury), age (54 at the relevant time), and in reprisal for prior
protected EEO activity when:
1. on September 8, 2005, management issued her a seven-day suspension
for leaving her vehicle unsecured;
2. on September 28, 2005, management issued her a seven-day
suspension for failure to observe security rules and regulations and
for failure to follow instructions;
3. from June 1, 2005 to October 8, 2005, management denied her
preference of route assignment, despite her being the senior PTF;
4. from June 1, 2005 to October 8, 2005, management denied her
request for a more consistent work schedule;
5. from June 1, 2005 to October 8, 2005, management either left
her off or removed her name from the work schedule;
6. from June 1, 2005 to October 8, 2005, management provided
complainant with fewer work hours than male employees;
7. from June 1, 2005 to October 8, 2005, management assigned her
to work at different facilities;
8. from June 1, 2005 to October 8, 2005, management required
complainant to provide a doctor's note before allowing her to return
from Family and Medical Leave Act (FMLA) covered leave.
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. The AJ assigned to the case found that, after
viewing the evidence in a light most favorable to complainant, a decision
without a hearing was appropriate as there were no genuine issues of
material fact in dispute. The AJ issued a decision without a hearing
on March 26, 2007, finding no discrimination. 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.
On appeal, complainant contends that the AJ erred in issuing a
decision without a hearing. Specifically, complainant argues that
the AJ inappropriately made credibility determinations, and erred in
finding that she did not establish a prima facie case of disability and
reprisal discrimination. Complainant further contends that there are
genuine issues of material fact which require a hearing on the merits
of her complaint.
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, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. 1 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). She must generally 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). The prima facie inquiry may be
dispensed with in this case, however, since 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); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, 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, 143 (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); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we find that assuming, arguendo, complainant established a prima
facie case of sex, age, disability, and reprisal discrimination, the
agency nonetheless articulated legitimate, non-discriminatory reasons for
its actions. The record reflects that, with respect to claims (1) and
(2), management issued complainant the seven-day suspensions at issue
for failing to follow the agency's safety procedures with respect to
securing her postal vehicle. The record shows that the discipline at
issue was commensurate with the agency's progressive discipline policy,
and that other employees, outside complainant's protected classes,
were issued the same level of discipline for similar safety violations.
(Report of Investigation, Affidavit B, 194-216).
With respect to complainant's work assignments, schedule, and hours,
the record shows PTF employees such as complainant are required to be
flexible, as their schedules "can change from day to day and even hour to
hour depending on operational needs and work flow." (R.O.I., Affidavit
B, C, D; Exhibit 5). Additionally, the record does not reflect any
significant disparity in the number of days complainant was scheduled to
work compared to other PTF employees. Further, management states that,
although complainant was scheduled to work at the same rate as other
PTFs, she took leave at a higher rate. (R.O.I., Affidavit B, C, D).
A review of the record supports management's contention, showing that
during the period at issue, complainant used sick leave on 11 of the 51
days she was scheduled to work. (R.O.I., 48-55).
Finally, with respect to claim (8), the record shows that complainant left
work on July 29, 2005, and requested FMLA leave. (R.O.I., Affidavit A).
Complainant subsequently provided documentation from her physician
stating that complainant was "incapacitated" and should not be scheduled
to work from July 29, 2005, until she could be seen by her physician on
August 16, 2005. (R.O.I., Affidavit A, 41). The record also reflects
that complainant's absence was not covered by FMLA, and that it is
agency procedure for management to require medical clearance to return
to work after extended absences not covered by FMLA. (Agency's Brief,
Attachment 1). We find that complainant failed to proffer any evidence,
beyond her mere assertions, to show that the agency's actions were
motivated by discriminatory animus toward her protected classes, or that
the agency's articulated reasons for its actions are pretextual.
CONCLUSION
We find that, viewing the record evidence in the light most favorable to
complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ's decision and the agency's final order is AFFIRMED.
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
July 23, 2009
Date
1 In so finding, we note that although the AJ clearly made several
inappropriate credibility determinations with respect to statements
made by complainant, the record also shows that these credibility
determinations amount to harmless error, as they do not involve any
facts material to the instant complaint. See eg. AJ Decision, 10.
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0120072444
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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