0120092620
09-14-2009
Mary A. Brandon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary A. Brandon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092620
Agency No. 4E-852-0033-08
Hearing No. 540-2008-00110X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's March 25, 2009 final action concerning her equal employment opportunity (EEO) complaint claimed 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.
During the period at issue, complainant was employed as a Sales Services and Distribution Associate, PS-05, at the agency's Queen Creek Main Post Office in Queen Creek, Arizona.
On December 13, 2007, complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On January 10, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against her on the basis of reprisal for prior EEO activity when:
1. on or about June 2006, the job bid position she had been awarded was pulled and subsequently reposted at a lower level;
2. on or about October 29, 2007, she was issued a Notice of Fourteen (14) Day Suspension;
3. on or about December 6, 2007, she was not paid for the time spent providing a deposition in an EEO complaint;
4. on or about December 19, 2007, she was not permitted to attend a Step 2 grievance meeting; and
5. on or about December 19, 2007, she was issued a Notice of Removal.
On January 23, 2008, the agency issued a partial dismissal. The agency accepted claims 2 and 5 for investigation. The agency dismissed claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency dismissed claim 3 on the ground that it alleged dissatisfaction with the processing of a prior complaint, pursuant to 29 C.F.R. � 1614.107(a)(8). The agency dismissed claim 4 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1) because it constituted a collateral attack on the negotiated grievance process.
Following the investigation concerning claims 2 and 5, complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 4, 2008, the AJ issued a decision by summary judgment in favor of the agency concerning a separate complaint identified as Agency No. 4E-852-0167-07.1 The AJ, however, initially denied the agency's summary judgment motion for the instant complaint (Agency No. 4E-852-0033-08) and stated that she would "retain the hearing record in both complaints until both complaints are closed administratively. The Agency is ordered to file additional documentation no later than December 26, 2008."2
The record reflects that the agency conducted an investigation concerning additional information regarding alleged comparative employees identified by complainant pursuant to the AJ's December 4, 2008 Order. Thereafter, the agency filed a Supplemental Motion for Summary Judgment. On March 11, 2009, the AJ issued a decision by summary judgment in favor of the agency concerning claims 2 and 5. On March 25, 2009, the agency fully implemented the AJ's decision in its final action.
Without addressing the prima facie analysis, the AJ found that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext. The AJ noted that in regard to claim 2, complainant was issued a Notice of Fourteen (14) Day Suspension for insubordination and failure to follow instructions. The AJ noted that according to Supervisor, Customer Services (SCS), she was the deciding official to issue complainant the 14-day suspension. Specifically, SCS stated that on September 19, 2007, complainant engaged in a heated argument with her supervisor (S1). SCS further stated that complainant "was yelling on the phone to [S1] in which her co-workers and the customers in the lobby could hear, which is insubordination. She was loud and angrily yelling on the phone; which is disruptive." SCS stated that on the same day, complainant hung up on S1 "at least three occasions disrespectfully."
The record reflects that on or about September 19, 2007, complainant alleged that she was being subjected to a hostile work environment by S1. The record reflects that an investigation was conducted and management determined that S1 had not created a hostile work environment. Complainant was notified of the outcome of the investigation on October 5, 2007 by the Postmaster (PM). The record further reflects that as a result of complainant's actions on September 19, 2007, SCS conducted a fact finding interview on October 9, 2007. Furthermore, SCS stated that she was not aware of complainant's prior protected activity until complainant "informed me of it during her Fact Finding, which led to the 14 Day Suspension."
Regarding claim 5, the AJ noted that complainant was issued a Notice of Removal based on her absence from her assignment from October 9, 2007 through December 14, 2007. The AJ noted that according to SCS, she was the deciding official to issue complainant a Notice of Removal "due to the fact that a review of [her] official attendance record shows that she had been absent from her assignment from October 9, 2007 up to December 14, 2007. Her absence was charged to Absent Without Official Leave (AWOL)." SCS stated that after the hostile work environment investigation was completed, complainant was directed to return to work. SCS stated that on October 18, 2007, complainant was sent a duty status letter "which directed her to return to duty and/or contact [PM] by phone immediately to advise him about her duty status and expected date of return to duty and/or provide acceptable documentation in support of her absence. She failed to return to duty; she failed to contact [PM] or myself and failed to provide acceptable documentation for her absence as directed. In addition, on November 9, 2007 she was sent a second Duty Status letter, which directed her to return to duty, provide acceptable medical documentation in support of her absence and to contact [PM] to advise about her duty status. She failed to comply with the directives."
SCS stated that on November 9, 2007, PM sent complainant a letter informing her that she was not eligible for FMLA because she had exhausted her FMLA hours and that she was being carried in an AWOL status. In his November 9, 2007 letter, PM noted that complainant contacted him by telephone on November 2, 2007 and stated she would send medical documentation regarding her absence; however, he never received acceptable medical documentation. PM notified complainant that he scheduled her for a Fact Finding on November 14, 2007 and warned her that "failure to show for your scheduled fact finding may lead to some form of corrective action up to and including removal from the Postal Service."
Further, SCS stated that during November 14, 2007 fact finding meeting, complainant stated "she would only state that she did comply with the directives and then said that she complied with the directive of providing documentation. She also indicated that she would not return to duty until a complete, proper investigation was conducted regarding the hostile work environment reported on September 19, 2007. Her response was not acceptable, she did not provide acceptable medical documentation to the medical unit as requested in the duty status letters above, she did not contact [PM] or me to advise of her duty status and she did not return to duty. The only documentation she submitted was a form WH 380 to the FMLA office with a copy to [PM] and the medical unit of the same document."
The record reflects that by letter dated November 14, 2007 to the agency, complainant stated that she "would be happy and willing to return to work provided I have no contact with [S1] and she has no contact with me."
On appeal, complainant argues that the AJ erred in finding no discrimination concerning claims 2 and 5. Complainant states "I feel her Summary Judgment for the Agency was unacceptable considering the agency had not, willfully; given the Judge all the information she requested in her request for further documentation from them."
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing regarding claims 2 and 5, or regarding the AJ's findings on the merits. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action concerning claims 2 and 5, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.3
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
September 14, 2009
__________________
Date
1 The record reflects that on September 21, 2007, complainant filed a formal complaint. Therein, complainant claimed that since August 2007, she was subjected to harassment and a hostile work environment in reprisal for prior EEO activity in regard to, but not limited to: working conditions; not receiving copies of leave slips in a timely manner; on or around August 15, 2007, she became aware that another employee was permitted to work the Address Management Systems (AMS), although complainant had requested and been denied the opportunity to learn and work AMS; on or around August 24, 2007, she was instructed to provide documentation to substantiate her leave on August 16, 2007; on various dates, she became aware that management was not honoring an agreement from a July 12, 2007 meeting (between Postal management and the union in which complainant was present in the capacity of a union steward) concerning a co-worker's start time and the fact that the co-worker was exclusively performing duties outside of her Principle Assignment Area.
2 There is no indication in the record that complainant challenged the AJ's summary judgment for Agency 4E-852-0167-07 or raised the matter in the instant appeal. Therefore, we will not address it in this decision.
3 On appeal, complainant does not challenge an agency January 23, 2008 partial dismissal concerning claims 1, 3 and 4. Therefore, we have not addressed these issues in our decision.
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0120092620
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092620