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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