0120142188
12-02-2016
Libby K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Libby K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120142188
Hearing No. 530-2012-00068X
Agency No. 4C-080-0078-11
DECISION
On May 27, 2014, Complainant filed an appeal from the Agency's April 30, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant did not demonstrate that she was subjected to discrimination and/or reprisal.
ISSUES PRESENTED
The issue presented in this case is whether the Equal Employment Opportunity Commission's Administrative Judge (AJ) correctly determined in a decision without a hearing that Complainant was not subjected to discrimination and/or reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-time Letter Carrier at the Agency's Manasquan Postal facility in Manasquan, New Jersey. On July 27, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), color (White), age (48), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. On April 22, 2011, she was screamed at in front of coworkers;
2. On April 22, 2011, she was issued a Letter of Warning which was subsequently reduced to a discussion;
3. On April 26, 2011, management had not completed her Office of Workers' Compensation Program (OWCP) paperwork, and grabbed the papers, handed them to her and ordered her to leave the building, locking the doors behind her;
4. On April 28, 2011, she had to return to work because she was given the wrong paperwork and had to enter the building from the lobby; and
5. On an unspecified date, her pay was intentionally disrupted.
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 Administrative Judge. Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on February 20, 2014. The AJ determined that Complainant did not establish a prima facie case of discrimination, as she did not demonstrate that any similarly situated employee was treated more favorably. With regard to Complainant's reprisal claim the AJ found that Complainant failed to establish a casual nexus between her prior EEO activity which occurred four years earlier and the subsequent allegations in this case.
Notwithstanding, the AJ found that assuming Complainant established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that on March 28, 2011, Complainant did not refuel the vehicle and ran out of gas which caused the Agency to employ other carriers to complete deliveries on her route. Management explained that Complainant's actions caused her to go into overtime status and increased costs to the Agency. On April 4, 2011, Complainant left her vehicle running while she moved to the back of her vehicle which was a violation of safety protocols.
On April 22, 2011, Complainant was observed by management engaging in what they considered to be wasting time practices. Management thereafter showed Complainant a video designed to correct her time wasting practices. Complainant became upset and asked for a union steward and EAP and ended up putting in a leave slip and leaving for the day. As a result of these incidents, on April 23, 2011, Complainant was issued a Letter of Warning (LOW) dated April 22, 2011, for failure to follow instructions. On June 23, 2011, the Agency and the union resolved the grievance by reducing the LOW to a discussion. On April 26, 2011, Complainant returned to the station, while still out on leave, and demanded that her supervisor complete a form in her presence. Complainant was ordered to leave the building and was escorted out. The AJ found that Complainant did not demonstrate that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination or reprisal. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ did not have Complainant's evidence when the AJ made her decision. She requests that her materials be reviewed. She also maintains that her evidence shows that her supervisor's behavior was inappropriate. She contends that this is supported by her winning her grievances.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 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. Dep't of Def., 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). Upon review, we find that there are no material facts at issue and all procedural requirements were followed. Therefore, we find that the AJ properly issued a decision without a hearing.
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons as listed above. Moreover, we note that Title VII is not a civility code and while we certainly do not condone unprofessional behavior such as yelling at an employee, we find that Complainant has not demonstrated that her supervisor's yelling or the issuance of a LOW was because of discriminatory reasons. The evidence also shows that Complainant's LOW, which was for failing to follow instructions, was subsequently reduced to a discussion. Additionally, we find that Complainant has presented no evidence other than her conclusory statements that management interfered with her OWCP claims. Accordingly, we find that Complainant did not show that the Agency's reasons for its actions were pretext for discrimination.
Further, with respect to Complainant's contentions on appeal, a review of the evidence submitted by Complainant shows that she was successful with regard to her grievances against her supervisor and various other supervisors. We find, however, that none of the documentation provided by Complainant demonstrates that discriminatory animus was involved in the claims set forth in her complaint.
Finally, to the extent that Complainant is claiming that she was subjected to a hostile work environment, we find that the few incidents complained of were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which fully implemented the AJ's finding that Complainant did not demonstrate that she was subjected to discrimination or reprisal.
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
__12/02/16________________
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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