0120090935
05-27-2009
Nikita S. Aaron, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nikita S. Aaron,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090935
Agency No. 4J-604-0048-08
Hearing No. 443-2008-00120X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's November 20, 2008 final action concerning her equal employment opportunity (EEO) complaint claiming 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.
Complainant alleged that the agency discriminated against her on the basis of race (African-American) when:
1. on January 23, 2008, she received a Letter of Separation which was subsequently reduced to a Letter of Warning; and
2. on February 16, 2008, she was constructively discharged. 1
Following the investigation into her formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On November 12, 2008, the AJ issued a decision by summary judgment in favor of the agency. The agency fully implemented the AJ's decision in its final action.
The AJ found that complainant had not established a prima facie case of discrimination based on race. The AJ further found that assuming complainant established a prima facie case of race discrimination, the agency articulated legitimate, non-discriminatory reasons for its actions. The AJ noted that the record reflects that when complainant accepted the Rural Carrier Associate position, she read and signed a statement outlining her duties. The AJ noted that the statement provided that "the work schedule is usually one day per week, HOWEVER, RCA's must be available for work when needed. The RCA will need to replace the Regular Carrier whenever he/she calls in sick, goes on vacation, attends jury duty, etc [emphasis in original]."
The AJ noted in regard to claim 1, on January 12, 2008, complainant requested leave without pay for January 19 and 20, 2008, a holiday weekend. The AJ further noted that on January 15, 2008, complainant's supervisor (S1) denied complainant's request for leave without pay because it was a holiday weekend. On January 19, 2008, the day complainant was denied leave, she called S1 stating she was sick and would not report to work. The record further reflects that on January 22, 2008, the Tuesday after the Monday holiday, complainant did not report to work as scheduled and failed to call in to explain the absence. The AJ noted that according to S1, she issued complainant a Letter of Separation during her probationary period effective January 25, 2008 for being repeatedly unavailable for duty and Absence Without Leave. The AJ noted pursuant to the National Agreement between the agency and Letter Carriers, the probationary period is 90 days worked or one calendar year, whichever comes first. The AJ noted that the agency mistakenly issued the Letter of Separation after complainant worked two days past her probationary period.
Further, the AJ noted that complainant filed a grievance concerning her Letter of Separation. On February 12, 2008, complainant's grievance was settled and, as a result, the Letter of Separation was reduced to a Letter of Warning and complainant was reinstated. The AJ noted, however, on February 16, 2008, as soon as she reported for work, complainant resigned from agency employment.
Regarding claim 2, the AJ noted that complainant alleges that she was constructively discharged from the agency. The AJ determined that after a review of the record, complainant was not constructively discharged. The AJ noted that the Commission has established three elements which complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against complainant created the intolerable working conditions; and (3) complainant's involuntary resignation resulted from the intolerable working conditions. See Lyons v. Department of Veterans Affairs, EEOC Request No. 05981169 (July 30, 2001). The AJ determined that complainant failed to show that the agency's conduct was severe. Moreover, the AJ found that complainant has not shown that the agency engaged in discrimination which resulted in intolerable working conditions such as to lead to complainant's involuntary resignation.
Finally, the AJ concluded that complainant did not prove, by a preponderance of the evidence, that the agency's proffered reasons for its action were a pretext for discrimination.
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.
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination. The Commission determines that the agency conducted a thorough investigation.
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, 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.
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
May 27, 2009
__________________
Date
1 For purposes of clarity, the Commission has numbered complainant's claims as claims 1 - 2.
??
??
??
??
2
0120090935
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090935