Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 4, 20140120130604 (E.E.O.C. Dec. 4, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120130604 Hearing No. 480-2011-00429X Agency No. 1F-904-0030-11 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the Agency’s October 12, 2012 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 Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency’s Los Angeles Network Distribution Center in Bell, California. On July 14, 2010, the Distribution Operations Manager (M1) directed the management team to ensure that employees were not clocking in prior to the start of their tours. In accordance with those instructions, Complainant’s supervisor (S1) gave a series of stand-up talks to his unit, including Complainant, advising them not to clock in prior to the start of their tours and to keep their timecards in the rack during hours of operation. In addition, on July 23, 2010, S1 specifically instructed Complainant to not clock in prior to the start of her tour and informed her of the consequences of not following instructions. Despite these instructions, Complainant clocked in prior to the start of her tour on three occasions in December 2010. S1 conducted an investigative interview with Complainant and issued her a Letter of Warning on December 31, 2010, for failure to follow instructions. Despite the Letter of Warning, Complainant continued to clock in early on numerous occasions in late-December 2010 through mid-January 2011. On January 25, 2011, S1 held an 0120130604 2 investigative interview with Complainant. Based on Complainant’s prior disciplinary history for similar conduct, S1 issued Complainant a Seven-Day No Time-Off Suspension for unacceptable conduct, failure to follow instructions, and failure to observe schedule. On February 4, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her in reprisal for prior protected EEO activity when: 1. On December 31, 2010, Complainant was issued a Letter of Warning for Failure to Follow Instructions/Failure to Observe Schedule; and 2. On January 28, 2011, Complainant was issued a Notice of Seven-Day No Time-Off Suspension for Unacceptable Conduct/Failure to Follow Instructions/Failure to Observe Schedule. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the Agency and issued a decision on September 21, 2012. In the decision, the AJ assumed arguendo that Complainant established a prima facie case of reprisal and found that the Agency articulated legitimate, non-retaliatory reasons for its actions. In particular, Agency management stated that Complainant had fair notice of the rule prohibiting employees from clocking in early through several stand-up discussions attended by all employees, but Complainant did so anyway and repeatedly. As a result, Complainant was issued the Letter of Warning and subsequently, a Seven-Day No Time-Off Suspension. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant had not been subjected to reprisal as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the AJ erred in granting summary judgment in favor of the Agency as she has shown that the Agency retaliated against her. Further, Complainant argues that she has shown that she did not violate any rules or policies. In addition, Complainant contends that the record was not adequately developed, and she challenges the manner in which the AJ handled discovery and pre-hearing matters. Accordingly, Complainant requests that the Commission reverse the final order. 0120130604 3 ANALYSIS AND FINDINGS The AJ’s Handling of the Case As an initial matter, the Commission shall address Complainant's objections to the manner in which the AJ managed and adjudicated her complaint. Complainant alleged that the AJ did not allow the record to be fully developed through discovery and took other actions that prejudiced her case. The Commission notes that EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. § 1614.109; see also EEO MD-110, at 9-10. The Commission has reviewed the documentary evidence in the record and finds no evidence that the AJ abused her discretion in any of her discovery and pre-hearing rulings. Further, the Commission is unable to find any evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case. Disparate Treatment/Reprisal The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force , EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993). In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. The Commission agrees with the AJ that assuming arguendo 0120130604 4 that she established a prima facie case of reprisal, Complainant failed to present evidence to rebut the Agency's legitimate, non-retaliatory reasons for its actions. More specifically, S1 affirmed that he gave a series of talks on July 15, 16, and 20, 2010, to his unit instructing them to not clock in prior to the start of their tours and about keeping their timecards in the rack during operational hours. ROI, at 97. S1 stated that on July 23, 2010, he gave Complainant specific instructions about not clocking in prior to the start of her tour and informed her of the consequences of not following these instructions. Id. On December 26 through December 28, 2010, Complainant began her tour of duty prior to the scheduled start time. Id. S1 held an investigative interview with Complainant on December 28, 2010, and issued her a Letter of Warning for failure to follow instructions and clocking in prior to the scheduled start of her tour of duty. Id . at 97, 103. S1 confirmed that Complainant’s conduct did not improve and she continued to clock in prior to the scheduled start of her tour. ROI, at 98. Complainant clocked in early on nine occasions at the end of December 2010 through January 16, 2011. Id. S1 held an investigative interview with Complainant on January 25, 2011, and issued her a Seven-Day No Time-Off Suspension for unacceptable conduct, failure to follow instructions, and failure to observe her schedule. Id . at 98, 108. In attempting to establish that the Agency’s reasons are pretextual, Complainant argued that she did not violate any rules or policies. The record indicates that Complainant’s conduct was in violation of several Agency and District policies and regulations, and conflicted with management’s instructions. ROI, at 108-09. While she may have disagreed with management’s interpretation of these policies, there is simply no evidence to support a finding that the Agency's motivation for its interpretation was retaliatory or applied to others in a disparate manner. Thus, construing the evidence in the light most favorable to Complainant, the Commission finds no evidence that Complainant's prior protected EEO activity was a factor in any of the Agency's actions. As a result, the Commission finds no basis to disturb the AJ’s summary judgment decision finding that Complainant was not subjected to reprisal as alleged. 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 summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 0120130604 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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), at 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 (S0610) 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. 0120130604 6 RIGHT TO REQUEST COUNSEL (Z0610) 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 Date December 4, 2014 Copy with citationCopy as parenthetical citation