Patti M. King, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 4, 2009
0120071037 (E.E.O.C. Jun. 4, 2009)

0120071037

06-04-2009

Patti M. King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Patti M. King,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071037

Hearing No. 350-2006-00017X

Agency No. 4F852008605

DECISION

On December 15, 2006, complainant filed an appeal from the agency's

November 13, 2006 final order concerning her equal employment opportunity

(EEO) complaint. She alleged 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., Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 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.

BACKGROUND

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

as a Carrier at the agency's Mountain View Station in Tucson, Arizona.

On May 28, 2005, complainant filed an EEO complaint alleging that she

was discriminated against on the bases of race (White), sex (female),

disability (her weight), age (birth year 1960), and in reprisal for

prior unspecified protected EEO activity when on March 22, 2005, the

agency issued complainant a Notice of 7-Day Suspension.1

Complainant's supervisor, who was named as the responsible management

official (RMO) determined that complainant had submitted excessive

overtime claims for the three-month period prior to, and including,

February 24, 2005. The record reflects that the agency warned complainant

regarding her unscheduled overtime. In the three months prior to February

24, 2005, complainant worked 38 days and incurred overtime in excess of

20 minutes on 27 occasions, with an average of 102 minutes per instance of

unscheduled overtime during the relevant period. No other employee had a

comparable record. In addition, the record reflects that complainant's

prior EEO activity occurred in January of 2000, four years before the

subject disciplinary action and that the prior EEO activity involved a

different agency manager.

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 requested

a hearing. The AJ assigned to the case determined that the complaint

did not warrant a hearing and, over complainant's objection, issued

a decision without a hearing on October 18, 2006. The AJ noted that

complainant did not submit an affidavit or any sworn statement to

present a genuine issue of material fact. The AJ noted that the amount

of overtime incurred and the frequency of the infractions incurred by

the persons to whom complainant compared herself were not similar to

complainant's unscheduled overtime and that complainant had received a

previous warning. The agency subsequently issued a final order adopting

the AJ's determination that complainant failed to prove that she was

subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant argues that the AJ erred in granting summary judgment

in favor of the agency, because there are questions of material fact

regarding whether complainant's morbid obesity constitutes a disability.

She also argues that further discovery is needed to discern whether two

employees were similarly-situated to complainant and whether the agency's

articulated reasons were a pretext for discrimination or retaliation.

The agency contends that it took action for legitimate reasons other

than complainant's race, sex, weight, or prior EEO activity.

ANALYSIS AND FINDINGS

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).

We find that the AJ properly determined that this case was appropriate

for summery judgment, because no genuine issue of material fact exists.

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). He

must generally establish a prima facie case by demonstrating that

he 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). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

The agency explained that complainant received a seven-day suspension,

later reduced to a letter of warning, for repeated and excessive

unauthorized overtime, despite warnings to avoid this conduct.

This explanation is sufficient to meet the agency's burden.

The burden shifts to complainant to establish that the agency's proffered

explanation more likely than not is a pretext for discrimination.

Complainant, however, did not produce any evidence to support her

claim that the agency's stated reason (excessive unscheduled overtime)

was a pretext for discrimination or retaliation. On the contrary,

complainant conceded, and offered evidence, which revealed that her

unscheduled overtime use was greater than the employees with whom she

compares herself. With regard to the retaliation claim, the prior EEO

activity occurred more than four years before the incident at issue

and involved a different manager. For these reasons, we conclude that

complainant failed to establish her claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, it is the decision

of the Commission to AFFIRM the agency's final order.

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 tends 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 4, 2009

Date

1 The suspension was reduced to a Letter of Warning as the result of a

grievance proceeding.

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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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