0120131040
06-11-2013
Sherille S. Harris, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Sherille S. Harris,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131040
Hearing No. 560-2011-00191X
Agency No. 4J-630-0021-11
DECISION
On December 26, 2012, Complainant filed an appeal from the Agency's November 21, 2012, 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., 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time Sales Service Associate/Distribution Clerk, Level 6, at the Agency's Post Office facility in Maryland Heights, Missouri.
On February 1, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), disability (depression), age (44), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. From September 7, 2010 and continuing, Complainant was on detail to a Level 7 position but was only paid one hour of higher level pay each day;
2. On October 13, 2010, Complainant was threatened with an Internal Observation;
3. On October 21, 2010, the Manager made rude and threatening remarks to Complainant;
4. On November 12, 2010, Complainant worked outside of her medical restrictions;
5. As of December 2, 2010, Complainant had not been paid for three hours for her medical appointment on November 30, 2010;
6. On December 31, 2010, Complainant's Family Medical Leave Act rights were denied;
7. On January 24, 2011, the Supervisor gave Complainant a pre-disciplinary interview.
At the conclusion of the investigation, the Agency provided Complainant 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. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on November 5, 2012.
As to claim (1), the AJ indicated that Complainant alleged she was subjected to discrimination when she was not paid eight hours of PS-7 pay instead of seven hours of PS-6 and one hour of PS-7 pay as she had been receiving. The AJ noted that Complainant was only performing one hour of PS-7 duties, namely closing out her work station at the termination of her shift. The AJ found that Complainant failed to indicate that she was performing additional PS-7 tasks over the closing out of her station which would entitle Complainant to PS-7 pay for other reasons. As such, the AJ concluded that Complainant had not shown that she was subjected to disparate treatment regarding claim (1). Further, the comparator Complainant proffered as to claim (1) had formal PS-7 training and had been performing managerial tasks in conjunction with the PS-7 level. As such, the AJ did not find her to be a comparator. In addition, the AJ concluded that the Agency provided legitimate reasons for paying Complainant one hour of PS-7 which she found was not pretext for discrimination.
In claim (2), Complainant asserted that the Acting Manager threatened Complainant with an Internal Review following the results of the Fall 2010 "mystery shopper" visit were made known. The AJ noted that there was no evidence that the Agency, in fact, conducted an Internal Review following Complainant's failure to greet customers. The AJ, assuming Complainant was harmed by this claim, found that the Agency articulated legitimate, nondiscriminatory reasons for threatening Complainant based on her failure to properly greet customers.
As to the rude remarks raised in claim (3), Complainant asserted that the Acting Manager stated to her, "I see why don't nobody like you." The AJ noted that Complainant failed to show she was aggrieved by this statement. As such, the AJ concluded that Complainant did not show that she was subjected to discrimination with this event.
Complainant claimed in claims (4) and (6) that she was worked outside of her medical restrictions under the Family Medical Leave Act (FMLA). The AJ found that the record showed that Complainant was limited to working 40 hours per week. On the two weeks Complainant raised in claims (4) and (6), she had only worked for 32 hours due to holidays. As such, the AJ found that if Complainant had worked those dates, she would not have worked more than 40 hours per week. Therefore, the AJ concluded that Complainant was not work outside of her work restrictions.
In claim (7), Complainant asserted that she was given a pre-disciplinary interview. The Supervisor interviewed Complainant for her failure to report to work on November 12, 2010 and December 31, 2010. When Complainant provided medical documentation in support for her leave on those two days, Complainant was not disciplined for the two absences. As such, the AJ determined that Complainant was not aggrieved. She also held that the Agency provided legitimate, nondiscriminatory reasons to inquire about Complainant's absences right after or before a holiday. As such, the AJ concluded that Complainant failed to demonstrate that the event raised in claim (7) constituted discrimination.
The AJ then turned to determine if Complainant established that she was subjected to harassment. The AJ concluded that the events were isolated and did not amount to acts so severe or pervasive that they altered Complainant's employment. Accordingly, the AJ concluded that Complainant did not show evidence of a hostile work environment.
Finally, as to claim (5), the AJ noted that Complainant asserted that the Agency withheld three hours of pay with the Office of Workers Compensation Program (OWCP). The AJ determined that this constituted a collateral attack and dismissed claim (5) pursuant to 29 C.F.R. � 1614.107(a)(1).
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Dismissal - Claim (5)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). In claim (5), Complainant asserted that the Agency withheld three hours of her OWCP pay. The proper forum for Complainant to have raised his challenges to actions which pursuant to OWCP is the Department of Labor. It is inappropriate to now attempt to use the EEO process to collaterally attack on the OWCP process. As such, we find that the AJ's dismissal of claim (5) was appropriate.
Disparate Treatment - Claims (1), (2) and (7)
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions in claims (1), (2) and (7). The AJ properly found that Complainant was paid for the one hour of PS-7 work she preformed; she was threatened with an Internal Observation due to a report regarding Complainant's performance; and that she was given a pre-disciplinary interview for Complainant's failure to report for duty on November 12, 2010 and December 31, 2010. Complainant failed to show that the Agency's reasons were pretext. Accordingly, we find that the AJ correctly determined that Complainant was not subjected to disparate treatment.
Reasonable Accommodation - Claims (4) and (6)
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. As noted above, for the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
Upon review of the record, we find that the AJ properly held that Complainant was not denied a reasonable accommodation as alleged in claims (4) and (6). The record showed that Complainant would not have worked 40 hours during those weeks; as such she was not asked to work outside of her medical restrictions. Accordingly, we conclude that the AJ properly found no violation of the Rehabilitation Act.
Harassment
Finally, Complainant asserted that she was subjected to a hostile work environment based on the events raised in the instant complaint. It is well-settled that harassment based on an individual's race, color, sex, age, disability and reprisal is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to his/her membership in those classes and her prior EEO activity; (3) the harassment complained of was based on race, color, sex, age, disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review of the record, we find that, taking the events as a whole, that Complainant failed to show that she was subjected to events which had the purpose or effect of unreasonably interfering with her workplace and/or created a hostile work environment. As such, we agree with the AJ's determination that Complainant has not established that the events raised constituted harassment based on her protected bases.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order implementing the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 11, 2013
__________________
Date
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0120131040
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131040