0120151773
09-21-2018
Simonne J.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Simonne J.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120151773
Hearing No. 531-2011-00244X
Agency No. 1K211004313
DECISION
On April 28, 2015, Complainant filed an appeal from the Agency's April 2, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal 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: (1) whether Equal Employment Opportunity Commission Administrative Judge's (AJ's) issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against her on the bases of sex (female), age (49) and reprisal (protected EEO activity) when:
1. On June 29, 2013, Complainant was removed from driving power industrial truck (PIT) equipment and assigned to the Flat Sorting Machine;
2. On July 23, 2013, Complainant was informed that she was no longer allowed to operate PIT equipment;
3. On September 26, 2013, the Agency issued Complainant a 14-day suspension; and
4. On December 30, 2013, the Agency issued Complainant a Notice of Proposed Removal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Equipment Operator at the Agency's Incoming Processing and Distribution Center in Baltimore, Maryland.
On April 18, 2013, Complainant's supervisor (S1) observed her operating PIT equipment in an unsafe manner. Specifically, S1 instructed Complainant to pick up one container at a time with the forklift but Complainant was seen picking up five containers at once, which jackknifed. On June 29, 2013, the Plant Manager (PM) removed Complainant's duties of operating PIT equipment and assigned her to the Flat Sorting Machine based on her failure to follow S1's instructions and for driving a forklift in an unsafe manner.2 On July 23, 2013, the PM issued a notice to Complainant that she was still suspended from operating PIT equipment indefinitely, but she was returned to her regular workstation.
On September 26, 2013, the Agency issued Complainant a 14-day suspension for "Unsatisfactory Performance and Failure to Follow Instructions." Complainant had refused to follow another supervisor's (S2's) instructions to assist with dispatching mail. Complainant grieved the suspension, which was reduced to a no-time-off suspension.
On December 30, 2013, the Agency issued Complainant a Notice of Proposed Removal, and on January 23, 2014, issued a decision upholding the removal, effective February 7, 2014. Complainant appealed her removal before the Merit Systems Protection Board (MSPB), which upheld the removal and found that Complainant had not shown that her removal was based on her race, sex, age, or disability.
On August 13, 2013, Complainant initiated EEO counseling and on October 29, 2013, filed her formal EEO complaint, alleging that the Agency discriminated against her on the bases of sex (female), age (49), and reprisal for her current EEO complaint when:
1. On June 29, 2013, Complainant was removed from driving PIT equipment and assigned to the Flat Sorting Machine;
2. On July 23, 2013, Complainant was informed that she was no longer allowed to operate PIT equipment;
3. On September 26, 2013, the Agency issued Complainant a 14-day suspension; and
4. On December 30, 2013, the Agency issued Complainant a Notice of Proposed Removal.3
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 AJ. Complainant timely requested a hearing. The Agency filed a Motion for Summary Judgment on September 25, 2014. The Agency argued that there were no genuine issues of material fact and that Complainant was unable to establish a prima face case of discrimination based on sex, age, and reprisal, or that the Agency's legitimate non-discriminatory reasons for its actions were pretext for discrimination. Complainant filed a Response to the Agency's Motion for Summary Judgment on October 4, 2014, arguing that there were material facts in genuine dispute and that a hearing was warranted. The Agency filed a Reply to Complainant's opposition on October 16, 2014, and Complainant filed a sur-reply on October 27, 2014.
The AJ determined that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on January 20, 2015. In his decision, the AJ noted that Complainant's October 27, 2014, submission was not in accordance with EEOC procedures and that he did not consider it when making his decision. As an initial matter, the AJ dismissed Complainant's claim that she was discriminated against when she received her Notice of Proposed Removal because the proposal merged with her removal, which Complainant had brought before the MSPB.
In regards to Complainant's claim that she was discriminated against based on sex and age when, on June 29, 2013, the Agency removed her PIT privileges and when, on July 23, 2013, the Agency informed her that she was no longer allowed to operate PIT equipment, the AJ determined that Complainant had not shown that similarly-situated employees, outside of her protected bases, were not disciplined for similar offenses. While Complainant named alleged comparators, many were also 40 years old or older. Additionally, one named comparator was female. The AJ also found that none of the comparators were disciplined for the same or similar circumstances as Complainant. The AJ also held that Complainant had not shown she was retaliated against because her initial EEO activity occurred in August 2013, after these two events. The AJ further found that the Agency articulated a legitimate, nondiscriminatory reason for its actions, in that Complainant was observed to be operating the PIT equipment in an unsafe manner; Complainant was unable to show that this was pretext for discrimination.
For Complainant's claim that she was discriminated against based on reprisal when she was issued a 14-day suspension, the AJ found that the Agency was justified in issuing the suspension because Complainant did not follow her supervisor's instructions, and Complainant did not provide any evidence that there was a nexus between her suspension and her EEO activity.
On April 2, 2015, the Agency issued its final order fully implementing the AJ's decision. Complainant then filed the instant appeal.
CONTENTIONS ON APPEAL
In her appeal,4 Complainant argues that the AJ's decision and the Agency's final action be reversed because:
1. The AJ showed bias when he considered the Agency's reply but not Complainant's;
2. There are material facts in dispute;
3. The AJ did not make a determination as to whether the issuance of the 14-day suspension was discriminatory; and
4. The dismissal of the claim regarding the Notice of Proposed Removal was improper.
The Agency filed a Response to Complainant's appeal on June 9, 2015. Amongst other things, the Agency asks that the Commission affirms its final order implementing the AJ's decision finding no discrimination.
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 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 Chap. 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").
At the outset, Complainant alleges that the AJ showed bias against her when he did not consider her reply filed on October 27, 2014, but considered the Agency's reply. The AJ noted in his decision that he did not consider her reply because it did not follow EEOC procedure. We find that the AJ did not consider Complainant's October 27, 2014, reply because it did not contain specific citations to referenced evidence, as instructed in the Acknowledgment and Order issued June 11, 2014. As such, we do not find that the AJ showed bias against Complainant.
Decision without a hearing
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. Dep't of Def., 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 argues that a hearing should have been held because the following are material facts in dispute:
1. Complainant's supervisor was not S2 at all times relevant to this complaint;
2. Complainant did not operate equipment unsafely; and
3. The Agency has not proven it gave Complainant an instruction and that Complainant did not follow it.
In regards to Complainant's assertion that S2 was not her supervisor at all times relevant to this complaint, we find this not to be material because it does not affect the outcome of this case. While Complainant argues that it is important to note that supervisors move from operation to operation, it has no bearing on the circumstances surrounding Complainant's complaint.
Complainant also argues that whether she was operating equipment in an unsafe manner is in dispute. She notes that she did not admit to operating equipment in an unsafe manner and that the Agency has not proven it. Additionally, Complainant alleges that there is no proof that the Agency gave her an instruction or that she failed to follow it. Complainant argues that the Agency did not provide an affidavit from S1 stating that she gave Complainant an order. However, the record shows that the PM witnessed Complainant operating the equipment in an unsafe manner. In an email dated April 19, 2013, and the notice of Termination of PIT Operating Driving Privileges dated July 23, 2013, the PM specifically states that Complainant's supervisor told him that she gave Complainant an instruction and that the PM witnessed her not following that instruction, resulting in the jackknife incident. Additionally, Complainant asserts that, in her affidavit, she denied failing to S2's follow instructions, but she has not provided any evidence to support that there is a genuine dispute in the above incidents. Mere disagreement is not sufficient to show that there is a genuine dispute. Accordingly, we find that there are no material facts in genuine dispute and that the AJ correctly determined that a hearing was not necessary.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
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. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that anti-retaliation provision protects individuals from retaliatory action that reasonable person would have found "materially adverse," which in retaliation context means that action might have deterred reasonable person from opposing discrimination or participating in EEO process).
Complainant names various coworkers whom she alleges were treated more favorably than she was based on sex and age, but the record shows that only one coworker falls outside of her protected bases (C1). However, the PM stated in his affidavit that he had not witnessed C1 failing to follow a supervisor's instructions. As such, C1 is not a similarly-situated coworker who was treated more favorably than Complainant.
However, assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and age, the Agency articulated a legitimate nondiscriminatory reason for removing her PIT duties, first on June 29, 2013, and then indefinitely on July 23, 2013. In his affidavit, the PM stated that Complainant did not to follow her supervisor's instructions and failed to operate the PIT equipment in a safe manner. Further, the record shows that this was not the first time that Complainant had operated PIT equipment in an unsafe manner. In April 2010, she had her PIT privileges suspended for 30 days and was informed that further incidents could result in her PIT privileges being revoked indefinitely.
In regards to Complainant's claim that she was discriminated against based on reprisal for her EEO activity when the Agency issued her a 14-day suspension, S2 stated in her affidavit that she was not aware of Complainant's EEO activity. However, assuming, arguendo that Complainant had established a prima facie case of reprisal discrimination, S2 stated that she instructed Complainant to go assist with dispatching mail and that Complainant did not do so. The record shows that Complainant participated in a pre-disciplinary investigation on September 4, 2013. When questioned about her refusal to assist, Complainant responded, "[b]ecause I am the senior mail-handler and a junior mailhander from another section was over there so he need to go not me [sic]." S2 issued the suspension because she found Complainant's behavior and explanation unacceptable. S2 also took into consideration Complainant's prior disciplinary record, which included two prior suspensions and a letter of warning.
Complainant has not provided any evidence to show that management's explanation for its actions were pretext based on sex, age, and reprisal. In her appeal, Complainant argues that another supervisor (S3) signed her notice of suspension, but that in her affidavit, S3 stated that she was not the Agency official responsible for issuing the suspension, which shows "a propensity to not be truthful." While the record is not clear as to why S3 signed the suspension notice for S2, it is clear that S2 was the responsible management official who made the decision to suspend Complainant; even if S3 were not truthful in this instance, we do not find this matter to be material because Complainant has not shown evidence that S2 or the PM were untruthful.
In her appeal, Complainant states that the AJ did not make a determination as to whether she was discriminated against when the Agency issued her a 14-day suspension. However, the AJ did make a determination, with his discussion of the suspension starting on page 26 of the decision.
Complainant also alleges that the AJ improperly dismissed her claim related to her proposed removal because that claim was brought before the EEOC first and the MSPB did not have jurisdiction. However, we find that the AJ properly dismissed this claim for res judicata. When a complaint is filed on a proposed action and the agency subsequently proceeds with the action, the action is considered to have merged with the proposal. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991). Such a merger has now happened in this case; the proposal to remove no longer exists because it has merged with the actual removal action.
The record shows that the MSPB issued its initial decision regarding Complainant's removal on June 9, 2014, after Complainant filed her appeal before the MSPB on February 9, 2014. While Complainant amended the instant case to include her removal as a claim on January 6, 2014, when the Agency filed a Motion to Dismiss the claim with the MSPB, Complainant submitted a reply to the motion stating that she was choosing the MSPB for her Letter of Decision. Accordingly, we find that Complainant elected to file a mixed-case appeal on her removal to the MSPB and that the MSPB had jurisdiction and properly adjudicated her claim that she was discriminated against when the Agency removed her.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission finds that Complainant did not establish that the Agency's decisions to remove her PIT privileges and suspend her for fourteen days were based on her sex, age, or reprisal for prior EEO activity.
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 decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__9/21/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Approximately three years prior, on April 10, 2010, the Agency removed Complainant's duties to operate PIT equipment for 30 days. At that time, Complainant was informed that when an operator is involved in a second accident, the Agency will issue a second suspension for an indefinite period of time and the operator needs to take accident-avoidance training.
3 In her appeal, Complainant also raises two issues which the Agency dismissed in December 2013, as untimely. Because Complainant never raised these issues before the AJ, we consider them abandoned and will not address them in this decision.
4 We note that Complainant also mentions in her appeal her sexual orientation and disability status, the race of one comparator, and the sexual orientation of other comparators. But she does not specifically raise the issue that she was discriminated against based on race, disability, or sexual orientation. See Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (holding that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII). The Commission declines to consider issues raised for the first time on appeal that were not brought before the AJ.
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