0120092403
11-17-2009
Paulette Buck, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Paulette Buck,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120092403
Hearing No. 520-2008-00065X
Agency No. 4A-110-0106-07
DECISION
On May 8, 2009, complainant filed an appeal from the agency's April 9, 2009 final order concerning an 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. 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.
BACKGROUND
During the period at issue, complainant worked as a Sales and Services Associate at the agency's Princes Bay Finance Station in Staten Island, New York. On July 5, 2007, complainant filed a formal EEO complaint alleging that she was discriminated against on the basis of race/national origin (Chinese) when:
1. On or about May 7, 2007, Complainant was advised that her work hours had been changed;
2. On unspecified dates, Complainant was denied overtime opportunities;
3. On unspecified dates, Complainant was subjected to harassment with regard to being held to different work standards than her co-workers.
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. The agency submitted a timely Motion for a Decision Without a Hearing. Complainant's counsel was granted an extension to respond but failed to do so. The AJ assigned to the case granted the agency's February 18, 2009 motion for a decision without a hearing and issued a decision on April 2, 2009. 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.
In her decision, the AJ found, with regard to the first allegation, that it was undisputed that complainant's work location adopted extended hours and her individual work hours were adjusted to fit this new schedule because she was the most junior employee at the station in terms of seniority. The AJ further found that the record established that the agency was initially able to address complainant's objections to working later because a more senior co-worker voluntarily agreed to temporarily work some of complainant's late days and change non-scheduled days to allow complainant time to make alternative child care arrangements. The AJ noted that complainant conceded that this was a temporary arrangement. Subsequently, when the co-worker informed management that she wished to resume her original schedule, complainant was informed that she had to work her assigned schedule because she was the junior employee.
Regarding her second allegation, the AJ noted that complainant claimed that she was denied overtime opportunities on her non-scheduled days on ten occasions between May and August 2007. However, she conceded that she had different non-scheduled days than the other employees she cited as comparators, who were asked to come in and work on their respective non-scheduled days. It is also undisputed that, unlike other employees she named as being provided overtime opportunities, she could not be asked to come in and close the station because she is not a qualified T-6 employee.
Finally, with regard to her third allegation, the AJ found that complainant alleged that because she does not smoke while other employees do, she gets left alone to work the window while the others take smoking breaks. She also asserted that she sometimes had to open alone because other employees arrived late to work. The AJ found that the supervisor was not scheduled to work at the station on a daily basis, and stated that the employees were often on their honor to act professionally and take their breaks and lunches as scheduled.
Based on these undisputed facts, the AJ concluded that the agency had articulated legitimate, non-discriminatory reasons for its actions which complainant could not prove were pretextual. Furthermore, the AJ found, with regard to the third allegation, that even if complainant's allegations were proven true, the incidents were not sufficiently severe or pervasive to alter the conditions of complainant's employment and establish a discriminatory hostile work environment.
CONTENTIONS ON APPEAL
On appeal, complainant alleges that she was deprived of the opportunity to respond to the agency's motion; deprived of the benefit of a complete record; and deprived of the opportunity to settle the case. In response, the agency argues that complainant was not deprived of the opportunity to respond to its motion but that she simply failed to do so. The agency also argues that the AJ's decision and its final order adopting it should be affirmed as complainant fails to identify any genuine issues of material fact in dispute that would warrant a hearing.
ANALYSIS AND FINDINGS
Initially, we find that complainant was given an extension of time to respond to the agency's motion for a decision without a hearing. She failed to file a response. In addition, on appeal, she failed to explain what she would have included in her response that would have caused the AJ to deny the agency's motion. Complainant also fails to identify any deficiencies in the investigation, and upon review, we are satisfied that the record has been adequately developed. Thus, we are not persuaded by complainant's argument on appeal that a remand is required.
Further, upon review of the record, we conclude that the issuance of a decision without a hearing was appropriate because there are no material facts in genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is "material" if it has the potential to affect the outcome of the case. 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).
To prevail in a 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 he or 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 AJ correctly concluded that complainant failed to establish a prima facie case of race/national origin discrimination. The Commission expressly notes that the record is devoid of any evidence that any of the agency actions, about which complainant complains, are motivated by discriminatory animus. We find that not only did the investigation yield no evidence on this matter, but that complainant failed to proffer any that could support an inference of discrimination. Complainant's work hours were changed because she had the least seniority status, and she had different off days than the individuals she identifies as receiving more overtime. In addition, she was not qualified to close the facility. There is no other evidence which would support an inference of discrimination. Thus, complainant's disparate treatment claim fails. Similarly, we find that her harassment claim fails because there is nothing to establish that complainant's national origin played a role in the incidents alleged in support of her belief that she was held to different work standards. We discern no basis to disturb the AJ's decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we 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 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
November 17, 2009
__________________
Date
2
0120092403
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013