0120093247
09-16-2011
Linda J. Wanhala, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Linda J. Wanhala,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120093247
Hearing No. 471-2008-00118X
Agency No. 4J-530-0025-08
DECISION
On July 27, 2009, Complainant filed an appeal from the Agency’s June
25, 2009, 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.
ISSUES PRESENTED
1. Whether the record was adequately developed for an EEOC Administrative
Judge (AJ) to issue a decision without a hearing.
2. Whether the AJ appropriately issued summary judgment in favor of the
Agency, finding no discrimination on the bases of sex, age, and reprisal
for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a secretary at the Iron Mountain Post Office in Iron Mountain, Michigan.
Complainant’s Affidavit (Aff.), at 1. Her supervisor was the manager
of mail processing at the Kingsford Processing and Distribution Center.
In 2007, Complainant worked overtime at the Kingsford Processing and
Distribution Center, performing general clerk duties, such as working
at the priority pouch rack, cutting up flats, and sorting mail.
Complainant’s Deposition (Dep.), at 7. But she felt that she was
not getting her fair share of opportunities for overtime compared to
other employees, who were offered assignments by other managers to
work as acting supervisors (204-B assignments), Program Evaluation
Guide auditors, city-scheme clerks, and automated equipment operators.
Complainant’s Dep., at 13-14, 54, 57.
Prior EEO Activity
Complainant filed a formal complaint on July 17, 2007, alleging
discrimination on the bases of sex (female), age (58), and reprisal for
prior EEO activity when she was bypassed for the opportunity to work
overtime, appropriate responses were not taken when she filed grievances,
and she was denied the opportunity to work as a “204-B,” or acting
supervisor. The Commission affirmed the Agency’s final decision to
dismiss this complaint because Complainant failed to timely file a formal
complaint. See Wanhala v. U.S. Postal Serv., EEOC Appeal No. 0120073838
(Nov. 15, 2007).
Complainant initiated separate counseling on August 30, 2007 (Agency
No. 4J-530-0091-07), alleging discrimination on the bases of sex, age,
and reprisal when management had bypassed her for overtime since January
2007, and her supervisor directed abusive, degrading language at her
on September 5, 2007. There was no record that Complainant filed a
formal complaint.
Current EEO Complaint
On February 28, 2008, Complainant filed an EEO complaint, alleging that
the Agency discriminated against her on the bases of sex (female), age
(59), and reprisal for prior protected EEO activity when:
1. management bypassed her for overtime on 55 dates, from January 24,
2007 to February 26, 2008;
2. management subjected her to a hostile work environment;
3. management denied her high-level assignments;1
4. she was the victim of lies and degradation of character and disparate
treatment;
5. she was the victim of threats, lies, and lack of dignity and respect
by her supervisor.
The Agency accepted for investigation the issue of whether Complainant
had been subjected to hostile work environment harassment since November
19, 2007 when:
1. management bypassed her for overtime opportunities;
2. management denied her higher-level assignments;
3. on November 19, 2007, she was questioned and drilled about her leave;
4. on December 7, 2007, her supervisor threatened and accused her of
trying to cause trouble;
5. on January 2, 2008, her supervisor yelled at her and gave her a direct
order regarding the holiday and quarterly signup lists;
6. she has been lied to and degraded.
The Agency dismissed her claims of discrimination from January 2007 to
November 18, 2007, involving management bypassing her for overtime
opportunities, denying her higher-level assignments, and making
inappropriate comments to Complainant on September 5, 2007. The Agency
reasoned that Complainant had previously raised these same claims in her
prior EEO cases. Further, the Agency explained that these allegations
constituted discrete acts, and Complainant untimely raised those actions
in the present case.2
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s November 10, 2008 motion for
summary judgment and issued a decision without a hearing on June 15, 2009.
AJ’s Decision
The AJ first found it appropriate to issue a decision without a hearing
because Complainant failed to rebut the Agency’s statement of undisputed
material facts with any evidence. The AJ characterized Complainant’s
evidence as consisting only of generalized attacks on her supervisor,
noting for example the general nature of her statements in her proposed
witness list.
On the merits, the AJ determined that Complainant’s allegations
of denial of opportunities for overtime and higher-level assignments
constituted a disparate treatment claim. Under a disparate treatment
analysis, the AJ found that Complainant did not establish a prima
facie case of discrimination on the bases of sex, age, or reprisal.
The AJ found that Complainant received many hours of overtime during
the relevant time period, and Complainant did not establish that she
was treated differently compared to similarly situated employees.
But assuming that Complainant had established a prima facie case, the AJ
determined that the managers articulated legitimate, nondiscriminatory
reasons for their overtime and higher-level assignments during the
relevant period. Managers in general averred that they did not choose
Complainant to work overtime on the dates at issue because she did not
possess the right training or qualifications to work on those assignments.
For example, a maintenance manager averred that he did not use Complainant
as an acting maintenance supervisor (204-B) because she did not have
computer access to the maintenance programs or the training. Report of
Investigation (ROI), Affidavit (Aff.) C, at 4-5. Moreover, he averred
that Complainant was not under his direct supervision and did not work
in the maintenance craft. ROI, Aff. C, at 6. The maintenance manager
and an in-plant support acting supervisor averred that the reason why
one particular employee was called for overtime rather than Complainant
was because he was senior to Complainant and was city-scheme qualified.
Similarly, a distribution operation supervisor averred that she bypassed
Complainant for overtime because the overtime assignments called for
city-scheme qualified employees, and Complainant was not qualified in
the city scheme. ROI, Aff. E, at 4.
The AJ found that Complainant offered no evidence to show that the
reasons given by the Agency’s managers were a pretext for unlawful
discrimination. The AJ again characterized Complainant’s evidence of
pretext as consisting only of bare allegations.
For Complainant’s hostile work environment claim, the AJ clarified
that the unwelcome conduct at issue consisted of: (1) management’s
“lies” in explaining why she had been denied overtime and higher-level
assignments, (2) her supervisor’s accusations on December 7, 2007 that
she was causing trouble, (3) her supervisor’s yelling at her and giving
her a direct order on January 2, 2007, (4) her supervisor’s placing her
on speaker phone. The AJ determined that Complainant was not subjected
to conduct that was severe or pervasive enough to constitute a hostile
work environment.
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 that the record was not adequately
developed for summary disposition. She claims that she was not allowed
to present witnesses who had prior experiences with her supervisor to
establish a pattern of threatening and demeaning behavior. Complainant
also objects to the way the Agency’s attorney had deposed her by (1)
not permitting another employee to accompany Complainant, (2) asking
her petty and demeaning questions, (3) attempting to smear her personal
history and reputation.
According to Complainant, the reason why she had only included general
statements in her proposed witness list was because she did not want to
“put words in the mouths of the witnesses.” Complainant maintained
that a hearing was the appropriate forum to present specific information.
Complainant also maintains that the AJ erred in determining that there
were no genuine issues of material fact in dispute. Complainant contends
that management’s reasons for bypassing her for overtime were pretextual
because for certain assignments, she was in fact qualified to perform the
actual duties, notwithstanding the formal job titles and qualifications
associated with those assignments.
Complainant also asserts that her supervisor lied in explaining his
actions. Complainant states that if one of the witnesses “were
permitted to testify at a trial she would be forced to tell the truth
rather than hide from it as she was afraid of [the manager of mail
processing] and what he would do to her . . . . [A]fter this incident
she seemed to back off from me to favor [the manager of mail processing]
and that would show anyone that she backed off because she was afraid
of the same retaliation that I was being subjected to.”
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo the legal and factual conclusions of the AJ
and Agency. 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, at 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”).
The Commission is free to accept (if accurate) or reject (if erroneous)
the factual conclusions and legal analysis of the AJ and Agency, including
the ultimate fact of whether intentional discrimination occurred, and 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. 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).
Opportunity for Discovery and Adequacy of Record for Summary Disposition
Complainant essentially argues that she was not given an adequate
opportunity to engage in discovery. And as a result, the record in this
case was inadequately developed for summary disposition.
The Commission finds that Complainant was given an adequate opportunity
to engage in discovery to respond to the Agency’s motion for a decision
without a hearing. The Agency submitted its motion for summary judgment
on November 10, 2008. A few weeks later, Complainant objected to the
summary judgment motion. In her objection, Complainant presented broad
arguments, but she did not specifically dispute the Agency’s formulation
of the material facts at issue. For example, she wrote in her objection
that “the overtime issues are factual, and are ongoing as of this
date.” Nor did Complainant necessarily state in her objection that she
needed to engage in additional discovery before the hearing. She wrote:
There is ample proof to be submitted at the time of trial which will
bring forth [supervisor’s] character. There is a need to subpoena
witnesses who can attest to the fact that [supervisor] likes to control by
intimidation. In addition, I firmly believe that I should be entitled
to present witnesses who will verify the facts in this case. Also, I
would like to request that [supervisor] . . . perhaps even be subjected
to keeler polygraph testing.
In her list of potential witnesses, Complainant indicated that five out of
her six witnesses would testify “as to [supervisor’s] character,”
“how he is capable of continuous retaliation and harassment,” “how
and why he would choose to retaliate and harass [Complainant].”
Moreover, in her October 22, 2008 deposition, Complainant was given
the opportunity to testify why she believed she was subjected to sex
discrimination. She responded: “Just the fact that I’m a woman, I
guess.” Complainant’s Deposition, at 51. As a follow-up question,
she was asked to identify a male employee who had been treated better
than her. Complainant responded that she could not think of anyone at
that time. Id.
When asked in her deposition to identify other potential witnesses who
could support her testimony that her supervisor had prior knowledge of
her previous EEO activities, Complainant initially wanted to “reserve
. . . to not give their names at this time.” Complainant relented
after the Agency’s attorney showed her the AJ’s acknowledgement order,
stating her obligation to cooperate in discovery.3 Complainant’s Dep.,
at 19.
From this record, the Commission determines that Complainant was
given an adequate opportunity to engage in the amount of discovery
necessary for her to properly respond to the Agency’s motion for
summary judgment. Complainant was offered the opportunity but declined
it, perhaps believing that it was strategically better for her to delay
presenting the substance of her witness’ testimony until the hearing,
when they would be obligated to testify under oath, and uninhibited in a
neutral setting to fully talk about the “facts” and her supervisor’s
alleged bad character. As such, the Commission finds that the record was
adequately developed to allow a reasonable fact finder to draw conclusions
as to whether discrimination occurred. See 29 C.F.R. § 1614.108(b).
Genuine Issues of Material Fact
On appeal, Complainant mainly argues that there is a genuine dispute
as to whether the managers’ articulated reasons for bypassing her for
overtime opportunities were pretextual. Management officials testified
that she did not have the proper training or was not qualified for
certain overtime opportunities. Complainant disagrees, maintaining on
appeal that that she had previous experience in the actual job functions
of certain overtime positions.
The Commission finds that such an assertion does not raise a genuine
issue of material fact to be resolved by a hearing. Complainant’s
assertion is essentially a disagreement over the criteria managers
use to offer certain employees overtime opportunities. Thus,
even if Complainant were able to show that management erred in not
accounting for her prior work experience in determining her eligibility
for certain overtime assignments, management’s business decision to
select other employees with formal qualifications and training cannot
be found discriminatory simply because it appears that management acted
unwisely, or that management’s decision was in error or misjudgment.
We note that Complainant did not present evidence that management
offered overtime opportunities to similarly situated employees outside
of her protected groups, based on their prior work experience rather
than formal qualifications or training. As such, we find there was no
genuine issue of material fact, and it was appropriate for the AJ to
issue summary judgment on this record.
Disparate Treatment
Complainant essentially argues that various Agency managers did not give
her a “fair share” of opportunities to earn overtime due to her sex,
age, and in reprisal for prior EEO activity. Complainant identifies
several potential comparator employees, who she feels were similarly
situated to her but were treated better by management.
To prevail in a disparate treatment claim, Complainant generally must
first establish a prima facie case of discrimination by demonstrating that
she (1) is a member of a protected class, (2) was subjected to adverse
treatment, and (3) was treated differently than otherwise similarly
situated employees outside of the protected class. Walker v. U.S. Postal
Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep’t of
Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002).
To demonstrate that another employee is a similarly situated comparator,
Complainant must show that all relevant aspects of the comparator's work
situation were nearly identical to her own. See Davis v. Dep't. of
Labor, EEOC Appeal No. 0120101468 (Jun. 24, 2010); see also Haywood
v. U.S. Postal Serv., EEOC Appeal No. 0120092765 (Dec. 2, 2009).
The Commission considers the following factors in determining whether
comparators are similarly situated:
• whether Complainant and the comparators come under the same manager's
supervision;
• whether Complainant and the comparators perform the same job function;
• whether Complainant and the comparators are on the same tour of duty.
Davis, EEOC Appeal No. 0120101468.
If Complainant establishes a prima facie case, the burden then shifts
to the Agency to articulate legitimate, non-discriminatory reasons
for its actions. Texas Dep’t 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 a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); Burdine, 450 U.S. at 256; Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (Dec. 14, 1995).
Here, the Commission finds that Complainant's comparators were not
similarly situated to her because their work situations were not
identical or nearly identical. Complainant was a secretary at the Iron
Mountain Post Office, and possessed training in carrier operations.
In contrast, one of Complainant’s referenced comparators worked as a
clerk at the Kingsford facility, and had training in mail processing.
Two other potential comparators worked in part-time flexible positions
at the Norway Post Office. Another potential comparator worked as a
clerk in the city scheme under a different manager. Another comparator
was higher in seniority than Complainant and was city-scheme qualified,
while Complainant was not. Because these comparators were not similarly
situated to Complainant, we find that she failed to establish that she was
treated differently from otherwise similarly situated employees outside
of her protected classes. As a result, we determine that Complainant
failed to establish a prima facie case of discrimination for being
bypassed for overtime opportunities and higher-level assignments.4
Assuming that Complainant could establish a prima facie case of
discrimination, we find that the Agency’s managers articulated
legitimate, nondiscriminatory reasons for not offering Complainant certain
overtime opportunities and higher-level assignments. As previously stated
above, various managers averred that they had bypassed Complainant because
she did not have the qualifications or training for those assignments.
And as we previously explained, Complainant’s attempt to establish
pretext by arguing that her previous work experience qualified her for
these assignments is not sufficient. Therefore, we find that Complainant
failed to establish discrimination with respect to overtime opportunities
and higher-level assignments.
Hostile Work Environment
Complainant maintains that she was subjected to several forms of
unwelcome conduct.
• First, management bypassed her for overtime and higher-level
assignments and lied to her about their reasons for doing so.
• Second, her supervisor verbally accused her of trying to make trouble
on December 7, 2007 and warned her, “Remember, if you try to make
trouble, I will win.”
• Third, her supervisor yelled at her and gave her a direct order on
January 2, 2007.
• Fourth, her supervisor often placed her on speaker-phone whenever
she called him.
To establish hostile work environment harassment by a supervisor,
Complainant must show five things. First, Complainant must be a member
of a statutorily protected class. Second, the supervisor engaged in
unwelcome verbal or physical conduct. Third, the unwelcome conduct
was based on Complainant’s statutorily protected class. Fourth, the
unwelcome conduct either (a) affected a term or condition of employment,
or (b) had the purpose or effect of unreasonably interfering with the
work environment or creating an intimidating, hostile, or offensive
work environment. Fifth, there is a basis for imputing liability to
the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R.
§ 1604.11.
With respect to management bypassing her for overtime and higher-level
assignments and “lying” about their reasons to her, the Commission
finds that Complainant failed to establish the third element of
hostile work environment claim, that the unwelcome conduct was based on
Complainant’s statutorily protected class. As we previously explained
in the disparate treatment portion of this decision, Complainant could
not establish that the Agency’s articulated reasons for not offering
her certain assignments was a pretext for discrimination.
As for the other allegations of unwelcome conduct, we will assume, for the
sake of argument, that Complainant established the first three elements
of hostile work environment harassment. We will now examine whether this
unwelcome conduct was “sufficiently severe or 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 determining whether the unwelcome conduct was sufficiently severe or
pervasive, the Commission evaluates the harasser’s conduct 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, at 6 (Mar. 8, 1994). Unless the conduct is quite severe,
a single incident or isolated incidents of offensive conduct or remarks
generally do not create an abusive environment.
We find that, from the objective viewpoint of a reasonable person in
Complainant’s circumstances, the supervisor’s verbal conduct on
December 7, 2007 and January 2, 2007, and his placing Complainant on
speaker-phone were not sufficiently severe or pervasive to create a
hostile work environment. First, the unwelcome conduct consisted only
of verbal conduct, not physical conduct. Second, the content of the
supervisor’s yelling was not inherently hostile or patently offensive;
the supervisor did not swear at Complainant or use derogatory terms or
epitaphs that could demean her. Third, placing callers on speaker-phone
is a common practice in today’s workplace and is not inherently abusive.
For all these reasons, the Commission finds that Complainant failed to
sufficiently establish that her supervisor subjected her to hostile work
environment harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we AFFIRM the
Agency’s final order, implementing the AJ’s summary judgment decision,
finding no discrimination on the bases alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
__9/16/11________________
Date
1 Complainant later clarified in her deposition that the denial of
high-level assignments was essentially part of her bypass of overtime
claim.
2 Complainant does not appear to challenge the dismissal of these
allegations on appeal. Therefore, the Commission exercises its discretion
to not examine whether the Agency erred in dismissing these allegations.
3 With respect to Complainant’s argument that she was not allowed to
have an employee accompany her to her deposition, the Commission finds
that Complainant did not articulate how this prejudiced her testimony.
She did not indicate that this employee was her representative in this
case, and she did not explain why she needed this particular employee
at the deposition.
As for the Agency attorney’s alleged improper questions and statements
to Complainant during the deposition, we find that his conduct was
not so egregious as to deprive Complainant of an adequate opportunity
for discovery. On one occasion, the attorney asked Complainant whether
she got along with anybody at the facility, and whether she was on any
medications that might interfere with her present memory. Complainant
protested the attorney’s implication that she did not get along with
others and at several times protested the relevance of certain lines
of questioning. However, we find that, for the most part, Complainant
was asked broad enough questions and given sufficient opportunity to
identify other potential witnesses and present specific evidence to
support her claims throughout the session.
4 Even if these comparators were similarly situated to Complainant, the
time and accounting records for Complainant and the comparators do not
necessarily show that she was deprived of her “fair share” of overtime
opportunities. For example, between November 24, 2007 and February 26,
2008, Complainant identified 17 dates on which she was allegedly bypassed
for overtime. Yet on 5 of those dates, the amount of overtime she earned
equaled or exceeded those of her alleged comparators. By comparison,
one comparator never exceeded Complainant’s overtime hours during
this time period. Two of the referenced comparators each exceeded
Complainant’s overtime hours on 4 occasions. One comparator exceeded
Complainant’s overtime hours on 8 occasions. Based on this sample of
the 17 most recent alleged dates of disparate treatment, we find that
Complainant did not show that the Agency had deprived her of her fair
share of overtime opportunities compared to her comparators.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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