0120080311
04-23-2010
Cassandra E. Kendrick, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Cassandra E. Kendrick,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120080311
Hearing No. 551-2007-00062X
Agency No. 4E970005106
DECISION
On October 22, 2007, complainant filed an appeal from the agency's
September 19, 2007 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 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 EEOC Administrative Judge (AJ) properly issued a decision
without a hearing.
2. Whether the AJ properly found that complainant was not subjected to
discrimination on the basis of disability and in reprisal for prior EEO
activity.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a City Letter Carrier at the Vancouver, Washington Post Office.
On November 1, 2006, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of disability (Multiple Sclerosis)
and in reprisal for prior protected EEO activity when:
1. On July 1, 2006, the agency did not provide complainant with additional
assistance when she called the Station Manager to notify her that she
was having difficulty with the extreme heat on the day in question;
2. On August 1, 2006, the agency issued her a Letter of Warning for
Failure to Follow Instructions;
3. On August 1, 2006, the agency issued her a Letter of Warning for
Irregular Attendance;
4. On August 18, 2006, the agency issued her a Letter of Warning for
Unsatisfactory Performance;
5. On August 28, 2006, the agency issued complainant an unfair driving
observation;
6. On November 1, 2006, the agency denied complainant's request to use
a space heater in her work area because of the cold air circulating
throughout the building that caused her to experience neurological
symptoms; and,
7. On November 4, 17, 18, and 30, 2006, the agency denied her overtime
on her own assignment when her route was cased by part-time flexible
employees.
During the investigation of complainant's complaint, the investigator
requested affidavit responses from complainant twice, but complainant
failed to respond to the investigator's requests. The Manager of
Customer Services and two Supervisors of Customer Services submitted
investigatory affidavits. 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 AJ. Complainant timely
requested a hearing. On July 18, 2007, the agency moved for a decision
without a hearing, but complainant did not respond to the agency's motion.
On September 11, 2007, the AJ issued a decision without a hearing in which
she found that complainant was not subjected to unlawful discrimination.
The agency subsequently issued a final order adopting the AJ's finding.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ improperly found no
discrimination. Although complainant generally contends that the AJ
erred in finding no discrimination, her arguments only specifically
address claim 5. Complainant argues, for the first time on appeal,
that with respect to claim 5, her supervisor confessed that he did not
personally observe complainant operating her vehicle and gave complainant
an unfair observation report. 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
or credibility existed.
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 that the Commission has the discretion
to review only those issues specifically raised in an appeal. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
9-10 (November 9, 1999). Because complainant only specifically addressed
claim 5 on appeal, we restrict our review to this claim. In this case,
we assume arguendo that complainant is an individual with a disability and
established a prima facie case of unlawful discrimination. Nonetheless,
we also find that the agency provided legitimate, non-discriminatory
reasons for its actions. Specifically, the Supervisor of Customer
Services stated that, on August 28, 2006, he observed complainant's
vehicle parked incorrectly at her home during lunch and noted this on
complainant's observation report.1
On appeal, complainant contends for the first time that during a
discussion with the Supervisor on September 16, 2006, the Supervisor
"confessed" that he gave complainant an unfair observation report, and he
did not observe what the report claimed he saw. However, complainant's
belated assertion is uncorroborated, and the Supervisor steadfastly
maintained in his affidavit statement that the observation report
accurately reflected his observations on August 28, 2006. Consequently,
we find that complainant failed to provide any evidence from which
it could be reasonably concluded that the agency's non-discriminatory
explanations are pretext for unlawful discrimination. Thus, we find
that the agency properly found no discrimination for the reasons set
forth in this decision.
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
_____4/23/10_____________
Date
1 The Supervisor stated that complainant's vehicle was not parked at
the curb line, blocked the driveway, and its wheels were not correctly
aligned with the curb.
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0120080311
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080311