0120080686
09-17-2009
Zonetta Richardson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Zonetta Richardson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120080686
Hearing No. 450-2007-00200X
Agency No. 1G-753-0017-07
DECISION
On November 28, 2007, complainant filed an appeal from the agency's
November 15, 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 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.
ISSUES PRESENTED
1. Whether the AJ properly issued a decision without a hearing.
2. Whether the AJ properly found that complainant was not subjected to
discrimination on the bases of race and sex.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a mail processing clerk at the Dallas, Texas Main Post Office.
The record indicates that complainant was initially assigned to work
on Tour 1 from 10:00 p.m. until 6:30 a.m. Complainant was injured on
the job on September 9, 1996 and filed a claim with the Department of
Labor's Office of Workers' Compensation (OWCP). Consequently, the agency
placed complainant into a modified duty position on Tour 1. Complainant
continued to work modified assignments on Tour 1 until 2003.
In 2003, complainant reported that a co-worker that she had a consensual
relationship with was harassing her by discussing their personal sexual
matters with other co-workers. Because of the alleged harassment, the
agency granted complainant's request for a transfer to another Tour by
giving her a modified job with the hours of 12:00 p.m. until 8:30 p.m. and
the duties of repairing torn mail. On October 6, 2004, complainant
accepted a modified job offer with the hours of 6:00 a.m. until 2:30
p.m. and the duties of filing, answering telephones, and making copies.
Complainant remained on Tour 2 until 2006.
In June 2006, complainant's supervisor informed complainant that she
was no longer needed to work on Tour 2. In a letter dated November 16,
2006, the Plant Manager notified complainant that she must report to
Tour 1 on November 25, 2006.
On January 22, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (Black) and sex (female)
when in November 2006, the agency sent complainant a letter sending her
to work on Tour 1 with an employee that she had filed sexual harassment
charges against in 2003.
Complainant indicated that the November 2006 letter she received from her
supervisor stated that her tour hours were changed to 1:30 p.m. to 10:00
p.m., or Tour 1. According to complainant, she notified management that
the harasser came to work as early as 8:00 p.m. or as late as 10:00 p.m.
Complainant stated that management did not respond to her concerns about
the change in work hours.
Complainant's supervisor stated that complainant was returned to
her original Tour 1 work hours because all limited duty employees
were sent back to the tour that they were on when they were injured.
She stated that when complainant informed her that she did not want to
return to Tour 1 because of her previous sexual harassment claim, she
asked complainant to provide her with paperwork concerning the case,
but complainant did not provide the requested documentation.
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. On August 17, 2007, the agency moved for a decision
without a hearing, to which, complainant responded in opposition on
August 27, 2007. The AJ granted the agency's motion and in a decision
dated November 5, 2007, the AJ found no discrimination. Specifically,
the AJ determined that complainant did not establish a prima facie case
of discrimination or provide any persuasive evidence that the agency's
non-discriminatory explanations were pretext for unlawful discrimination.
The agency subsequently issued a final order fully adopting the AJ's
findings.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ improperly issued a decision
without a hearing because there were genuine issues of material fact
concerning whether she would come into constant contact with the alleged
harasser because the agency returned her to the same tour that he worked.
Complainant further contends that the AJ improperly refused to recuse
herself from this case even though she had decided complainant's
previous case. Complainant maintains that the alleged harasser is
"still looking to cause [complainant] harm." The agency requests that
we affirm its final order.
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, � VI.B. (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").
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).
We find that the AJ properly issued a decision without a hearing because
complainant failed to show that a genuine issue of material fact exists
or that there are credibility issues that would warrant a hearing.
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). 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 burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
As an initial matter, we note complainant's contention that the AJ
improperly failed to recuse herself from hearing this case, although the
same AJ ruled against complainant in a separate complaint. The record
reveals that the AJ also found no discrimination on complainant's similar
claim that she was subjected to discrimination on June 1, 2006 when
management informed her that it could not justify her working on Tour 2.
However, complainant has not provided any argument that establishes
that the AJ was biased or unfair or that complainant did not receive
a fair and impartial hearing. Davis v. United States Postal Service,
EEOC Appeal No. 01A54268 (November 7, 2005) (citing Roberts v. Morton,
549 F.2d 158, cert. denied, Roberts v. Andrus, 434 U.S. 834 (1977)).
Thus, we find that the AJ did not abuse her discretion when she denied
complainant's request to recuse herself from this case.
For purposes of analysis, we assume arguendo that complainant established
a prima facie case of sex and race discrimination. Nonetheless, we find
that the agency articulated legitimate, non-discriminatory reasons for
its actions. Specifically, agency management maintained that complainant
was returned to Tour 1 because the Plant Manager ordered all limited duty
employees to return to the tour on which they worked at the time of their
injury. The agency further explained that all limited duty employees
were returned to their original tours in compliance with Section 546.142
Employee Labor Relations Manual, which states that limited duty employees
should be assigned to their regular work hours to the extent that there is
adequate work available within employees' work limitations and crafts.
Complainant contends that the agency mishandled her 2003 sexual
harassment claim, but the merits of complainant's 2003 sexual harassment
claim and the agency's response cannot be revived through the instant,
separate complaint. Complainant suggests that there is a legitimate
concern that she will come into constant contact with the alleged
harasser because the agency returned her to work the same hours that
the harasser works. Regarding complainant's hostile work environment
claim, we determine that complainant has not alleged any actions that
are severe or pervasive enough to alter her work environment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Specifically, complainant has not asserted that
the alleged harasser has engaged in any conduct that would constitute
harassment since she returned to Tour 1.1 See Fermin Servin v. United
States Postal Service, EEOC Appeal No. 0120060224 (February 9, 2007)
(Commission found no harassment where there was no evidence that
former harasser continued to harass complainant after being detailed to
complainant's work facility). Moreover, complainant has not provided
any evidence from which a reasonable fact-finder could conclude that the
agency's actions were motivated by race or sex discrimination. Thus,
we find that the AJ properly found no 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,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that discrimination occurred.
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
______9/17/09_____________
Date
1 Although complainant contends on appeal that the alleged harasser is
"looking to cause" her harm, complainant failed to identify any specific
evidence that supports this bare assertion.
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0120080686
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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