0120070784
01-28-2009
Linda A. White, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda A. White,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070784
Hearing No. 280-2004-00336X
Agency No. 4E-640-0100-03
DECISION
Complainant filed an appeal from the agency's October 19, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. 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 Clerk at the agency's Park Hills Post Office facility in Park
Hills, Missouri. On October 23, 2003, complainant filed an EEO complaint
alleging that she was discriminated against on the bases of sex (female),
age (55), and in reprisal for prior protected EEO activity when:
1. On an unspecified date, S1 instructed complainant to work at
the Desloge Post Office when there was no stamp stock in the Point of
Sale System (POS), which set complainant up to make it appear she was
stealing.
2. On July 2, 2003, complainant was instructed to leave the Park
Hills Post Office at 8:00AM instead of 7:30AM to open the Desloge Post
Office at 8:30AM.
3. On July 12, 2003, the Postmaster, S2, yelled at complainant for
throwing cards wrong.
4. On July 14, 2003, S2 yelled at complainant in front of her co-workers
and accused her of making errors on the letter-sorting machine.
5. On July 21, 2003, complainant received a Letter of Warning for
Unacceptable Work Performance.
By letter dated January 22, 2004, the agency accepted issue (5) for
processing and dismissed claims (1), (2), and (4).1 These claims were
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. The agency found that complainant was not aggrieved and
suffered no loss from the incidents described in claims (1) and (2).
Further, the agency found that the incident described in claim (4)
was an isolated incident that did not rise to the level of harassment.
Subsequently, in a Letter of Rescission/Acceptance dated March 9, 2004,
the agency accepted issues (2), (3), (4), and (5) of complainant's
complaint for investigation. Additionally, the agency found that issue
(1) was not previously raised with an EEO Counselor. The agency advised
complainant that if she wished to pursue issue (1), she should contact
an EEO Counselor within fifteen days from receipt of the Letter of
Rescission/Acceptance.
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 requested
a hearing. The AJ assigned to the case considered the agency's request
to file a motion for a decision without a hearing.2 The AJ determined
that the complaint did not warrant a hearing and over complainant's
objections, issued a decision without a hearing on September 26, 2006.
In her decision, the AJ considered a number of requests to amend the
complaint submitted by complainant. The AJ observed that complainant's
proposed amendments were somewhat vague and after close examination, did
not appear to be like or related to the accepted claims of the instant
complaint. The AJ denied complainant's motions, noting that complainant
described incidents that fell outside the time frame of the complaint.
Turning to the merits of the complaint, the AJ found that complainant
failed to establish a prima facie case of discrimination on any basis
with respect to claim (2) of her complaint. Specifically, the AJ found
that other employees, not in complainant's protected groups also had their
starting times changed when they departed for the Desloge post office.
Further, the AJ assumed, for the sake of her decision, that complainant's
supervisor did yell at her as she described in claims (3) and (4) of
her complaint. Even so, the AJ found that the supervisor's actions were
unaccompanied by any concrete action and accordingly, failed to rise to
the level of harassment.
With respect to claim (5) (written discipline), the AJ found that
complainant failed to establish a prima facie case of discrimination on
any basis. Specifically, the AJ noted that complainant admitted that she
had made multiple scans of express mail for which she received discipline.
The evidence showed that other employees who scanned express mail multiple
times were also disciplined. Accordingly, the AJ found that complainant
did not show that she was treated differently than other employees under
similar circumstances.
The AJ considered complainant's overall claim of harassment. Regarding
complainant's claim that S1 complained that complainant was "too old and
too slow[,]" the AJ assumed that S1 had made such a statement. However,
the AJ did not find that complainant presented any evidence linking S1's
statement to any of the adverse actions described in the complaint.
Similarly, the AJ assumed that complainant had previously engaged in
the EEO process. Even so, the AJ found that complainant presented no
evidence of any connection between complainant's prior EEO activity
and the incidents described in the complaint. Drawing all reasonable
inferences in complainant's favor, the AJ found that complainant's
complaint did not describe a series of incidents sufficiently severe
enough to unreasonably interfere with her work performance.
The AJ therefore found that complainant did not show that sex, age
or reprisal discrimination occurred. The agency subsequently issued a
final order on October 19, 2006, fully implementing the AJ's finding that
complainant failed to prove that she was subjected to discrimination as
alleged.
On appeal, complainant states that S1 and S2 were not truthful in the
statements they provided during the investigation and claims that the
agency took steps to make her appear slow and unable to perform her job.
Moreover, complainant states that management failed to place the stamp
stock in POS-Machine which she claims set her up for fraud and resulted
in her being issued a Letter of Demand for $120.00.
ANALYSIS AND FINDINGS
At the outset, we address the agency's dismissal of issue (1) for failure
to raise the issue with an EEO Counselor. Specifically, the record shows
that on August 12, 2003, the agency issued complainant a Letter or Demand-
Indebtedness for the sum of $120.00 for two separate shortages in bank
deposits on May 27, 2003, and on July 2, 2003. We note that on appeal
complainant does not dispute the agency's contention that she failed to
raise this issue with an EEO Counselor. Upon review, we find the agency
properly dismissed issue (1) and advised complainant to contact an EEO
Counselor if she wished to pursue this claim.
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).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
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, 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).
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In the instant case, we find that the AJ properly issued a decision
without a hearing. We find the material facts are not in dispute.
We assume (as did the AJ) that complainant's supervisors were aware
of her age and that the comments she alleges, were made. We find the
incidents described in the complaint were not so severe or pervasive
that they altered the terms and conditions of complainant's employment.
We also note, as did the AJ, that other employees received discipline
for multiple scans of express mail. With respect to complainant's claim
that her supervisor raised his voice to her when he discovered errors in
complainant's work, we find that complainant did not present any evidence
that S2 did so based on complainant's age, sex or in reprisal for prior
EEO activity. While complainant found S2's harsh tone disrespectful
and inappropriate, we find that his remarks, unaccompanied by any
further action, even in light of complainant's other claims, did not
rise to the level of harassment. Viewing the evidence in the light
most favorable to complainant, we find that she did not show age, sex
or reprisal discrimination occurred and we find no reason to disturb
the AJ's decision.
After a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision finding no discrimination.
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
January 28, 2009
__________________
Date
1 The agency did not address issue 3 in its January 22, 2004 acceptance
letter.
2 The record contains the agency's April 8, 2006 request for an
opportunity to submit a motion for summary judgment, but no evidence
the agency ever submitted any such motion.
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0120070784
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120070784