0120090411
06-24-2010
Patricia D. Prator, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Patricia D. Prator,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120090411
Hearing No. 410-2007-00126X
Agency No. 4H-300-0247-06
DECISION
On October 24, 2008, Complainant filed an appeal from the Agency's
September 24, 2008, 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 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 whether the Administrative Judge (AJ) properly
issued a decision without a hearing, and whether complainant established
that the agency discriminated against her as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a part-time Rural Carrier at the Agency's Dallas, Georgia Post Office.
On August 1, 2006, Complainant's coworker (CW) told the supervisor
that Complainant had assaulted her on July 31, 2006, while off-duty
and that Complainant had been arrested. CW reported that she had been
scratched, and had several abrasions and a black eye. CW also claimed
that Complainant had been going through her mail and CW's daughter's
mail as well. The supervisor immediately issued Complainant an Emergency
Letter placing her off duty. Management was notified and the Office of
Inspector General (OIG) was contacted in order to investigate the matter.
During the investigation, the OIG discovered that in addition to the
arrest, Complainant had violated the agency's cell phone policy, had
transported people in her mail-delivery vehicle, and had removed and
opened mail addressed to CW's daughter.
On October 3, 2006, as a result of the OIG's report, the Agency issued
Complainant a Notice of Removal, effective November 11, 2006, for
improper conduct, failure to follow instructions, and violation of the
sanctity of mail. Thereafter, on September 25, 2006, Complainant filed
the instant EEO complaint alleging that she was discriminated against on
the basis of reprisal for prior protected EEO activity when, on August 1,
2006, she was issued an Emergency Placement in a Non-Duty Non-Pay Status
(the Emergency Letter) and was subsequently terminated from her position
for the reasons set forth in the Emergency Letter.
At the conclusion of the investigation, Complainant was provided 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 May 9, 2007, motion for a decision without
a hearing and issued a decision without a hearing on September 18, 2008.
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.
Specifically, the AJ found that Complainant could not make out a
prima facie case of reprisal. The AJ noted that, while Complainant
had previously initiated informal EEO counseling, she had failed to
allege that the actions that she was complaining of were based on a
discriminatory reason, i.e. that her sick leave was being investigated
because of her race, sex, color, national origin, religion, age, or
because of a disability. 1 The AJ indicated that the January 2006,
informal complaint regarding the investigation of her leave use was the
only alleged prior EEO activity that Complainant had had.
Notwithstanding, the AJ found that, assuming arguendo that Complainant
established a prima facie case of reprisal, the Agency had articulated
legitimate nondiscriminatory reasons for its actions; namely, that
Complainant was in violation of her duties and Agency guidelines.
The AJ found that Complainant failed to show that the Agency's reasons
were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the physical altercation occurred
while she was not on duty. She explains that the Emergency Letter was
issued before she could explain anything and contends that this was
part of a pattern of harassment. Complainant also contends that other
employees, who had also been arrested, were not punished as severely as
she was.
In response, the Agency argues that the comparators that Complainant
offered where not similarly-situated to her because one of the employees
was arrested while defending herself in a domestic dispute, and the
other employee in fact was issued an Emergency Letter. The Agency
maintains that Complainant failed to establish that she was subjected
to harassment based on her prior EEO activity. The Agency indicates
that, of the incidents to which Complainant refers, i.e., her supervisor
yelling at her, pointing his finger at her, scrutinizing her leave, and
issuing an Emergency Letter, all except one occurred prior to Complainant
actually filing an EEO complaint. Nevertheless, the Agency contends that
the incidents were not severe or pervasive enough to establish a hostile
work environment. The Agency asks that the finding of no discrimination
be affirmed.
ANALYSIS AND FINDINGS
Standard of Review
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").
Summary Judgment
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).
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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the Agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the Agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, Complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The
harasser's conduct should be evaluated 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 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and 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 the case of harassment by a supervisor, Complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
The Commission finds that the AJ properly issued a summary judgment
decision in this case because there are no material facts in dispute.
We find that even if we assume arguendo that Complainant established a
prima facie case of reprisal, we find the Agency articulated legitimate,
nondiscriminatory reasons for its actions; namely, that Complainant was
issued an Emergency Letter and a Notice of Removal because she was found
to have violated Agency rules. To show pretext, Complainant argued that
other employees were treated more favorably. However, the evidence shows
that the employees involved were not similarly-situated to her, and did
not have the infractions that Complainant had in her past. Therefore,
we find that Complainant failed to show that the Agency's reasons were
pretext for discrimination.
Further, with respect to Complainant's allegation that she was subjected
to harassment, the Commission finds that based on the record, Complainant
has not shown that she was subjected to a hostile work environment.
We find the incidents complained of by Complainant - occasional yelling,
pointing, and reviewing leave records - were not severe or pervasive
enough to establish a hostile work environment. Therefore, we find that
Complainant has not shown that she was discriminated against.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find
that the Agency's final action of implementing the AJ's finding of no
discrimination is hereby 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
June 24, 2010
Date
01 & 07 Merits Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director,
Office of Federal Operations Catherine McNamara, Acting Dir.,
Appellate Review Program FROM: Nina C. Rivera, Attorney NCR 6/14/10
Heidi Schandler, Supervisor 6/22/2010 Robbie Dix III,
Division Director Hss for RD3 6/22/2010 Appeal Number(s) 0120090411
Agency Number(s) 4H-300-0247-06 Hearing Number(s) 410-2007-00126X
Complainant(s): Patricia D. Prator Agency: USPS (SE) Decision: Affirmed
Statute(s) Alleged Title VII Basis(es) Alleged OR - Reprisal/Reprisal
Issue(s) Alleged D4 and H1 (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Merits Decision Codes X 4A - Merits
decision
? 4B - OFO found discrimination
List basis code(s):__________________
List issue code(s):__________________
? Comp. damages (C3) awarded?
X 4C - OFO found no discrimination/made no
determination re: discrimination
? 4E - Agency found discrimination
X 4F - Agency found no discrimination
X 4H - OFO affirmed Agency
? 4I - OFO reversed Agency
? 4J - OFO modified Agency (NOTE: if affirmed
in part and reversed in part, then (3L)
code required if at least one issue is
remanded)
? 3L - OFO remanded PART of Agency's merits
Decision (NOTE: Do not use 3L with a
4B code)
? 3P - Adverse inference
? 4K - AJ found discrimination
X 4L - AJ found no discrimination
? 4M - AJ made no finding X 4N - OFO affirmed AJ
? 4O - OFO reversed AJ
? 4P - OFO modified AJ
X 4T - AJ issued Summary Judgment decision
X 4U - OFO affirmed AJ Summary Judgment
? 4V - OFO reversed AJ Summary Judgment
? 3H - OFO denied attorney's fees
? 3I - OFO approved attorney's fees
? 3J - OFO modified attorney's fees
? 3T - Decision on comp. Damages - DENIED
? 3U - Decision on comp. Damages-APPROVED
? 3V - Decision on comp. Damages - MODIFIED
? 3W - Remand to AJ for remedies
? 3Z - Remand to Agency for remedies
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Imbedded Procedural Issues Codes Merit Affirmed Merit Reversed
Merit Modified ? Procedural Affirmed = A
? Procedural Reversed = B
? Procedural Modified = C ? Procedural Affirmed = D
? Procedural Reversed = E
? Procedural Modified = F ? Procedural Affirmed = G
? Procedural Reversed = H
? Procedural Modified = I
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Patricia D. Prator USPS
(SE) 0120090411
OPEN CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken 0
CLOSED CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken 0
Class Action Cases
Appeal No. ORADS Status Related (Yes/No) Actions Taken
Nina C. Rivera June 14, 2010
Attorney Date
1 On January 13, 2006, Complainant initiated informal EEO Counseling
challenging her supervisor's investigation of her use of sick leave in
December 2005. She did not allege any basis of discrimination. While she
alleged that she was harassed, she did not allege harassment based on any
factor. Complainant withdrew this complaint on or about March 25, 2006.
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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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