0120080207
07-01-2009
Yolanda Willis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yolanda Willis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080207
Hearing No. 440-2007-0023X
Agency No. 1-J-607-0051-06
DECISION
On October 15, 2007, complainant filed an appeal from the agency's October
2, 2007 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a part-time flexible motor vehicle operator at the Chicago Processing
and Distribution Center (P&DC) in Chicago, Illinois. Complainant had
been employed in this position since 1993. On January 16, 1998, while
working at the Chicago P&DC, complainant began working as a full-time
driver for Airborne Express (now known as a DHL). On April 28, 2005, it
was reported to the Office of Inspector General (OIG) that complainant was
working as a driver for DHL while working for the agency. It was further
reported that complainant had used sick leave and Family Medical Leave Act
(FMLA) to work at DHL. OIG investigated the allegations, and submitted a
report to management on August 3, 2005. The OIG investigation revealed
that complainant was paid by the agency for sick leave while working at
DHL on six dates in 2002.1
On September 17, 2005, the agency issued a notice of removal to
complainant charging her with unacceptable conduct. On October 11,
2005, complainant filed a grievance regarding the removal notice.
On August 21, 2006, the arbitrator issued a decision upholding the
removal.2 Complainant's last day in Pay Status was April 5, 2006, but
the effective date of her Removal was August 21, 2006. Thereafter, on
August 29, 2006, complainant contacted an EEO Counselor, and subsequently
filed an EEO complaint alleging that she was discriminated against on
the basis of sex (female) when she was removed from her position.3
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 filed a motion for a decision without
a hearing. Although complainant commented on the state of the evidence,
she did not object to the agency's motion. The AJ thereafter issued a
decision without a hearing on September 25, 2007, in favor of the agency.
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.
On appeal, complainant contends that the agency did not conduct a thorough
investigation before her termination. Complainant also cited several
male employees who were found to have committed more serious violations
but were not removed from their positions. Complainant submitted
several documents with her appeal, showing that male employees were
not subject to the same level of discipline as her.4 In response,
the agency requests that we affirm its final order adopting the AJ's
finding of no discrimination. Specifically, the agency alleged that the
individuals identified by complainant as comparatives either received
the same level of discipline as complainant, or they were not similarly
situated to complainant.
ANALYSIS AND FINDINGS
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, � VLB. (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").
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, All 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). The
record reflects that ample notice of the proposal to issue a decision
without a hearing was given to the parties, a comprehensive statement
of the allegedly undisputed material facts existed and the parties had
the opportunity to respond to it.
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, 120 S.Ct. 2097 (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).
Viewing the facts in the light most favorable to complainant and
assuming, arguendo, that complainant established a prima facie case
of sex discrimination, we find that the agency articulated legitimate,
non-discriminatory reasons for terminating complainant. Specifically,
complainant was terminated because she violated the agency's sick leave
policy by working while being paid sick leave, and engaged in unethical
conduct by working for a competitor of the agency.
Because we have found that the agency provided legitimate reasons for
terminating complainant, complainant must demonstrate that the agency's
proffered reasons are a pretext for sex discrimination. We find that
complainant failed to do so. We note that complainant alleged that
she was treated differently that male employees. However, we find
that the employees complainant identified in her complaint were not
similarly-situated because they worked in different positions (trailer
operator, supervisor), and under different supervisors. Moreover,
the record shows that several male employees were also removed from
their employment during the same time period and for the same reasons
as complainant. Further, complainant failed to proffer any evidence
to show that the agency was motivated by animus toward her race or
age. Therefore, we find that complainant failed to show that a genuine
issue of material fact existed as to whether the agency's proffered
reasons for terminating her was a pretext for discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order. The
Administrative Judge's issuance of a decision without a hearing was
appropriate, and a preponderance of the record evidence viewed in the
light most favorable to complainant does not establish that discrimination
occurred as alleged.
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
July 1, 2009
Date
1 OIG subpoenaed employee records from DHL, which show six dates on which
complainant was absent from the Postal Service on either sick leave
or sick leave dependent care and worked at DHL. These dates include
February 26, 2002; March 11, 12 and 15, 2002; and October 15, 2002.
2 The arbitrator held that there was just cause to terminate complainant,
finding that complainant intentionally lied on her employment application
to DHL when she omitted information about her employment with the Postal
Service. The arbitrator found complainant to be "blatantly dishonest"
and "evasive in the extreme" during her testimony at the hearing.
The arbitrator further held that complainant "knowingly" worked for a
competing company, abused the agency's leave policy, and accepted pay
for leave to which she was not entitled.
3 The agency alleged in its "Motion for Summary Judgment" that
complainant's removal claim was untimely raised with an EEO Counselor,
and so should be dismissed. However, in Willis v. USPS, EEOC Appeal
No. 0120070741 (February 28, 2007), the Commission concluded that
complainant timely contacted an EEO Counselor on August 29, 2006,
because the effective date of her termination was August 21, 2006.
4 On appeal, the agency alleged that complainant mailed these documents
on November 3, 2007, but the envelope was postmarked October 18, 2007.
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0120080207
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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