Nichole Justice-Wilkerson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.

Equal Employment Opportunity CommissionSep 10, 2009
0120080667 (E.E.O.C. Sep. 10, 2009)

0120080667

09-10-2009

Nichole Justice-Wilkerson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.


Nichole Justice-Wilkerson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Capital-Metro Area),

Agency.

Appeal No. 0120080667

Hearing No. 430-2007-00160X

Agency No. 1K-231-0075-06

DECISION

On November 26, 2007, complainant filed an appeal from the agency's

November 6, 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. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order.

ISSUES PRESENTED

The issues presented are: (1) whether the EEOC Administrative Judge's

(AJ) issuance of a decision without a hearing was appropriate; (2) whether

complainant established that she was subjected to disparate treatment.

BACKGROUND

At the time of the events giving rise to this complaint, complainant

worked as a Part-Time Flexible Mail Handler, at the agency's Processing

and Distribution Center in Richmond, Virginia. On October 4, 2006,

complainant filed an EEO complaint alleging that she was discriminated

against on the bases of sex (female) and in reprisal for prior protected

EEO activity arising under Title VII when:

(1) On July 7, 2006, she was issued a Letter of Warning (LOW) for

"Failure to be Regular in Attendance;"

(2) On September 29, 2006, she was issued a Notice of 7-Day No Time Off

Suspension for "Failure to Follow Instructions;" and

(3) On November 6, 2006, she was issued a 14-Day Suspension for "Failure

to Follow Instructions," for an incident that occurred on October 31,

2006.1

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and a notice of her right to request

a hearing before an AJ. Complainant timely requested a hearing. On July

2, 2007, the agency submitted a motion for a decision without a hearing.

On October 31, 2007, over the complainant's objections, the AJ assigned to

the case issued a decision without a hearing finding no discrimination.

The AJ's decision found that complainant failed to establish that the

agency's legitimate, nondiscriminatory reasons for its actions were a

pretext for unlawful 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.

CONTENTIONS ON APPEAL

On appeal, complainant argues that the AJ erred in issuing a decision

without a hearing. She argues that the decision should not have been

issued because the agency's motion for a decision without a hearing

was untimely. She also argues that she feels that she was denied

"due process." In response, the agency urges the Commission to affirm

its final decision because the record is fully developed and there are

no genuine issues of material fact in dispute.

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).

After a careful review of the record, the Commission finds that the

AJ appropriately issued a decision without a hearing, as complainant

failed to proffer sufficient evidence to establish that a genuine issue

of material fact exists such that a hearing on the merits is warranted.

We find no abuse of discretion in the AJ's issuance of a decision without

a hearing despite the fact that the agency allegedly submitted an untimely

motion for a decision without a hearing. We note that the AJ appears to

have ultimately issued the decision sua sponte and that complainant was

afforded ample opportunity to respond in writing to the agency's motion.

See 29 C.F.R. � 1614.109(g).

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

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).

Assuming arguendo that complainant established a prima facie case

of discrimination, we find that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Complainant's direct

supervisor submitted a statement into the record indicating that

complainant was issued an LOW on July 7, 2006 for failure to be in regular

attendance. The LOW stated that complainant was absent on four days she

was scheduled to work in May and June 2006. The supervisor indicated

that complainant was issued a notice of suspension on September 29, 2006

because she "failed to follow instructions by reporting to work two hours

early unauthorized and she also influenced two other co-workers causing

them to receive discipline." A Supervisor, Distribution Operations

confirmed in the record that complainant had clocked in at 1:00 p.m. on

the day in question even though she was aware that her direct supervisor

had scheduled her to start at 3:00 p.m. With respect to the November 6,

2006 notice of suspension, complainant's supervisor stated that she was

issued the suspension because she brought multiple bags to the work room

floor in violation of agency policy even though she had been instructed

not to do so on numerous occasions. The notice stated that complainant

was only allowed to bring one clear bag with personal items to the work

room floor.

Complainant now bears the burden of proving by a preponderance of

the evidence that the agency's articulated reasons were a pretext for

discrimination. Complainant can do this directly by showing that the

agency's proferred explanation is unworthy of credence. Burdine, 450

U.S. at 256. Upon review, we concur with the AJ's determination that

complainant failed to provide any evidence of pretext in the record.

Furthermore, we find that the record is devoid of any evidence that

the agency's actions were motivated by discriminatory animus towards

complainant's sex or in reprisal for her prior protected activity.

We note that complainant failed to identify any similarly situated

individual not in her protected classes who were treated more favorably,

and there is no evidence in the record that management officials were

aware that she had ever participated in prior protected EEO activity.

Finally, to the extent that complainant is alleging that she was subjected

to a hostile work environment, we find under the standards set forth in

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's

claim of hostile work environment must fail. See Enforcement Guidance

on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March

8, 1994). A prima facie case of hostile work environment is precluded

based on our finding that complainant failed to establish that any of

the actions taken by the agency were motivated by discriminatory animus.

See Oakley v. United States Postal Service, EEOC Appeal No. 01982923

(September 21, 2000).

CONCLUSION

Summary judgment was appropriate in this case because no genuine issue

of material fact is in dispute. Complainant also failed to present

evidence that any of the agency's actions were motivated by discriminatory

animus towards her. We discern no basis to disturb the AJ's decision.

Accordingly, after a careful review of the record, 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

____9/10/09______________

Date

1 Complainant filed grievances after receiving the LOW and the notices

of suspension. The parties settled the grievance regarding the LOW,

agreeing that the LOW would be removed from her file provided that no new

discipline of a similar nature is issued prior to an agreed upon date.

Her grievances regarding the suspensions were both denied at Step 2.

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0120080667

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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