0120091724
06-03-2010
Zulaika Gould, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Zulaika Gould,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120091724
Hearing No. 410-2008-00391X
Agency No. 4H-300-0086-08
DECISION
On March 2, 2009, complainant filed an appeal from the agency's January
29, 2009 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Carrier at the agency's Jonesboro Post Office in Jonesboro,
Georgia. On February 20, 2008, complainant filed an EEO complaint
alleging that she was discriminated against on the basis of reprisal
for prior protected EEO activity under Title VII when:
1. On December 24, 2007, she was not paid for sick leave;
2. On January 3, 2008, she was not allowed to return to work with medical
restrictions; 1
3. On December 10, 2007, she was issued a Notice of Removal; and
4. On April 5, 2008, she was issued a Notice of Removal.
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. When complainant did not object, the AJ assigned
to the case granted the agency's October 15, 2008 motion for a decision
without a hearing and issued a decision without a hearing on January
9, 2009.
Initially, the AJ held that claim (1) was without merit. The AJ found
that complainant was paid 7.57 hours even though she had not filed the
necessary documents to receive the sick leave pay. Next, the AJ found
that complainant had established a prima facie case of reprisal-based
discrimination. Nonetheless, the AJ found that the agency had articulated
legitimate, nondiscriminatory reasons for its actions. As to claim (2),
the agency stated that complainant was not allowed to return to work with
medical restrictions because she had not submitted the necessary medical
documentation to receive such status. Further, there were no light or
limited-duty positions available at the time of her request. Regarding
claim (3), the December 10, 2007 Notice of Removal was issued because
complainant did not follow safety rules when on route delivering mail.
More specifically, complainant ran into and injured a child on the street.
Finally as to claim (4), the April 5, 2008 Notice of Removal was issued
because complainant misdelivered mail and failed to follow instructions.
The AJ then found that complainant failed to establish that the given
reasons were pretextual and therefore held that complainant had not been
discriminated or retaliated against as alleged. The agency subsequently
issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, as to claim (1), complainant disputes that she was paid the
sick leave for December 24, 2007. As to claim (2), complainant argues
her supervisor (S1) failed to take any action regarding her medical
restrictions. Complainant further asserts that she was not at fault
for the accident at issue in claim (3) and was not cited by the police.
Finally, as to claim (4), complainant alleges that the enhanced scrutiny
and increased disciplinary action caused her physical and emotional
distress and constituted a discrimonatory hostile work environment.
Accordingly, complainant requests that we reverse the final order.
The agency requests that we affirm the 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).
In the instant matter, we find that the AJ properly issued a decision
without a hearing because there is no genuine issue of material fact in
dispute.
Next, we note that 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).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), complainant's
supervisor (S1) states and the record reveals that complainant was paid
for 7.57 hours of sick leave taken on December 24, 2007. Report of
Investigation (ROI), Exh. 4; ROI, S1's Aff. at 8. Complainant has
presented no evidence rebutting the agency's documentation. As to claim
(2), S1 asserts that on January 8, 2008, complainant reported for work
and indicated that she could not perform her regular duties, but had no
documentation stating what her restrictions were. ROI, S1's Aff. at 8.
S1 adds that he requested documentation from complainant's physician
indicating what her restrictions were to allow management to assess
whether she could perform any of her carrier duties. Id. at 10. Further,
it was determined that complainant's restrictions would not allow her
to perform the duties of a carrier without further injuring herself. Id.
As to claim (3), S1 avows that complainant was issued the Notice of
Removal for failure to follow safety rules and regulations which resulted
in a preventable accident. ROI, S1's Aff. at 10. S1 asserts that an
investigation was conducted into the incident prior to issuing the Notice
of Removal and a Serious Accident Board convened to determine if the
accident was preventable. Id. S1 adds that complainant had a history
of working unsafely and produced copies of her safety observations and
accidents prior to the Notice of Removal. Id. at 10.
As to the April 5, 2008 Notice of Removal in claim (4), a second
supervisor (S2) asserts that after running the evening report on
March 28, 2008, she discovered that two Express mail deliveries had
no dispositions. ROI, S2's Aff. at 1. Further investigation revealed
that the deliveries were assigned to complainant and complainant had
failed to scan the mail as delivered. Id. The record reveals that
complainant had previously failed to scan Express mail and had failed
to secure an apartment complex's mailbox a few days earlier. See ROI,
Postmaster's Aff. at 16-17. Finally, the Postmaster noted that prior
discipline was considered in issuing the Notice of Removal. Id.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). We find
that aside from complainant's bare assertions, the record is devoid of
any persuasive evidence that discrimination was a factor in any of the
agency's actions. At all times the ultimate burden of persuasion remains
with complainant to demonstrate by a preponderance of the evidence that
the agency's reasons were not the real reasons, and that the agency acted
on the basis of discriminatory animus. Complainant failed to carry this
burden.
Accordingly, we find that complainant has failed to show that she was
discriminated against or retaliated against as alleged.
CONCLUSION
Accordingly, 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
June 3, 2010_______________
Date
1 We note that complainant did not allege disability as a basis of
discrimination in the instant complaint.
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0120091724
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091724