Zonetta Richardson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionSep 17, 2009
0120080686 (E.E.O.C. Sep. 17, 2009)

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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