0120102145
09-01-2010
Joan C. Lansdowne, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Joan C. Lansdowne,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120102145
Hearing No. 531-2009-00078X
Agency No. 4K-210-0068-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 25, 2010 final action 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Sales, Service Distribution Associate, PS-06, at the Agency's Arlington Station in Baltimore, Maryland.
On August 7, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of disability (acute grief) and age (over 40) when:
from May 15, 2008 through August 29, 2008, she was placed in an Emergency Placement Off-Duty Status (without pay) and subsequently issued a Notice of Removal on June 16, 2008.1
Following the investigation into the formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 9, 2010, the AJ issued a decision by summary judgment in favor of the Agency. In its March 25, 2010 final action, the Agency implemented the AJ's decision.
In his decision, the AJ found that Complainant did not establish a prima facie case of disability and age discrimination.2 The AJ found that assuming Complainant established a prima facie case of disability and age discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Complainant's direct supervisor (S1) stated that on May 15, 2008, he was in the office with Complainant's second level supervisor (S2) when a named employee (E1) came in and reported that Complainant "put her hands on her. We went down to the safe room to see what was going on. [E1] was working on the window. When I approached Complainant in the safe room, she said, 'You need to tell that bitch to leave me alone. That's right I called her a bitch.' I told her several times she needed to calm down or she would be placed in emergency status. Complainant approached me directly in my face and continued screaming and yelling. [S2] told her at that time to leave the building."
S2 stated that she was the deciding official to place Complainant in an Emergency Placement Off-Duty Status because of inappropriate behavior. Specifically, S2 stated that on May 15, 2008, she heard a commotion going on and E1 came in her office and "told me that Complainant called her a bitch and pushed her." S2 stated that she went to the safe room and "when I got there, Complainant was out of control, yelling and screaming. Complainant was yelling that [S1] told everyone her business and he apologized to her. Complainant was walking towards [S1] and I could not predict her behavior. I did not know if she would try to hit him. I told her that she would be placed on emergency status if she did not calm down. She continued to yell and scream. I warned her again that she would be placed on emergency status. She put her drawer away, collected her things and left the building."3
The record reflects that in the Emergency Placement Off-Duty Status letter dated May 15, 2008, S2 stated that complainant "placed her hands on [E1] in a threatening manner. Your conduct and behavior exhibited threatening and violent tendencies. You were also became loud, argumentative, and extremely aggressive."
With respect to the Notice of Removal, S2 stated that on June 6, 2008, she conducted a Pre-Disciplinary Interview (PDI) with Complainant and her representative. S2 stated that Complainant acknowledged she had violated the Zero Tolerance Policy. S2 stated that Complainant "made a statement to management: 'Do you know what I can do with this purse; Arlington is a large place.' This statement reflected that [Complainant] continued to violate the zero tolerance policy and still had uncontrolled rage." S2 stated that following the PDI, she issued Complainant the Notice due to her misconduct on May 15, 2008 during her altercation with E1. S2 stated that Complainant was in violation of Sections 661.53 "Unacceptable Conduct," 665.24 "Violent and/or Threatening Behavior," and 666.2 "Behavior and Personal Habits" of the Employee and Labor Relations Manual and Article 14, Section 1 of the Collective Bargaining Agreement.
Moreover, S2 stated that she did not discipline E1 for the altercation because she "was doing her assigned duties of waiting on customer. [E1] did not engage in the same behavior as [Complainant]. She did not become enraged, aggressive, or argumentative towards [S1], [Complainant], or me, not did she make any attempts to assault [S1]."
On appeal, Complainant argues that the AJ erred in issuing a decision without a hearing because there are genuine issues of material fact. For instance, Complainant argues that the AJ incorrectly concluded that she was the aggressor. Complainant further argues that the AJ erred when he determined that management was correct in finding that E1 did not violate the Agency's Zero Tolerance Policy.
ANALYSIS AND FINDINGS
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, 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 action 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 unlawful discrimination occurred.
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.
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
September 1, 2010
__________________
Date
1 The record reflects that Complainant filed a grievance concerning her Notice of Removal on August 26, 2008. Complainant's grievance was settled, and as a result the Notice of Removal was reduced to a 30-day suspension.
2 For purposes of this analysis, we assume without finding that complainant was a qualified individual with a disability.
3 The record reflects that Complainant alleged that S1 announced that she was going to her therapist in front of other people.
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0120102145
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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