0120121468
06-12-2012
Myrna U. Parayno, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Myrna U. Parayno,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120121468
Hearing No. 551-2011-00107X
Agency No. 4E-980-0102-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 30, 2011 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Lead Sales and Service Associate at the Agency's Burien Station in Seattle, Washington.
On January 13, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (not specified),1 national origin (Filipino), and in reprisal for prior protected activity when:
1. on August 3 and 4, 2010, the Agency violated a grievance settlement by allowing [named employee] to work in the Burien Station;
2. on August 4, 2010, she was forced to waive .75 hours of overtime;
3. on August 16, 2010, a co-worker cursed at her; and
4. on September 25, 2010, she was questioned about her break and taken off break.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 20, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
In her decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of race, national origin, and reprisal discrimination. The AJ further found assuming Complainant established a prima facie case of race, national origin, and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. The AJ noted that claims 1 - 2 are intertwined with the collective bargaining process between the Agency and union, and the proper forum for Complainant to have raised her challenges were within the grievance process itself.
Further, the AJ noted that in regard to claims 3 - 4, Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. Moreover, the AJ found that to the extent Complainant is claiming a discriminatory hostile work environment, the events described, even if proven to be true, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment
Regarding claim 1, the Manager Customer Services (MCS) stated that on August 3 and 4, 2010, he had a named employee (E1) work at the Burien Station because he needed an employee to work the window. Specifically, MCS stated that the station was "short of window clerks. We needed a window clerk to help service the customers and to have lunch relief for the clerks, I requested a window clerk from the pool and [E1] was sent to Burien."
The record reflects that in 2009, Complainant and E1 had an altercation in which Complainant provoked E1 in such a manner that E1 stated "Fuck you, you fucking bitch." The record further reflects that a grievance settlement was executed, dated August 3, 2010, which precluded E1 from working at the Burien Station. The record reflects that it was unclear if the subject settlement was ever forwarded to MCS.
MCS stated that when Complainant told him that there was a grievance settlement stating that E1 could not be assigned to the Burien Station, he told her that he would inquire into the matter. MCS stated, however, that he "didn't find an agreement signed by management stating that [E1] couldn't work at the Burien Station." Furthermore, MCS stated that Complainant's race, national origin and prior protected activity had nothing to do with E1 working at the Burien Station.
Regarding claim 2, the record reflects that Complainant, upon learning that E1 was scheduled to work on August 4, 2010, requested a waiver of .75 hours of overtime on August 4, 2010. Specifically, Complainant filed a subsequent grievance concerning the placement of E1 at Burien Station and the waiver of .75 in overtime.
MCS stated that he and Complainant talked to the Labor Relation Specialist (LRS) concerning payment of Complainant's .75 hours of overtime on August 4, 2010. MCS stated "at no time did I forced [Complainant] to waive the .75 hour of overtime, in fact, I told [LRS] to pay the .75 hour."
Regarding claim 3, the record reflects that on August 16, 2010, Complainant was scheduled to work at 3:00 p.m. but did not arrive at work until 4:45 p.m. The Acting Supervisor (AS) stated that she was working as a clerk that day. AS stated that she was doing the dispatches and notice left parcels while Complainant "claimed to be counting the other clerks money for the date. The station closes at 5:30. While I was at the parcel shelf writing up the notice the left parcels, and [Complainant] was at the T-6 desk, she yells at me '[AS] you need to come do the book.' I said, 'Shit, if you would have been here like the schedule said, you could have done the work yourself."
The Supervisor Customer Service (SCS) stated that he heard AS "curse but it was not directed towards [Complainant], she was talking under her breath (to herself)." SCS further stated that he asked Complainant and SCS "to cut out the arguing and get back to work, so we can all go home."
Regarding claim 4, the record reflects that during the course of the shift on September 25, 2010, the station was left with only one clerk. AS stated that she asked Complainant if she was "on break or lunch. She stated that she was on her break. [Named employee] and [named employee] were in the break room at this time. I then said to [Complainant] that there was only one window clerk at the window. At no point did I tell her to come off her break and go to the window."
CONTENTIONS ON APPEAL
On appeal, Complainant's argument appears confined exclusively to claim 1. Complainant argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argues that no manager or supervisor has the authority to ignore or override her August 3, 2010 grievance settlement. Complainant further argues that because management breached the subject agreement, she has been subjected to ongoing harassment.
In response, the Agency requests that the Commission affirm the AJ's finding of no discrimination.2
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.
After careful review of the record and consideration of the arguments on appeal, we find that Complainant has not identified genuine issues of material fact in this case which can only be resolved through a hearing. As such, we find no basis for concluding that the AJ erred in deciding this case by summary judgment. Accordingly, 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
June 12, 2012
__________________
Date
1 The record reflects that the Agency assumed that Complainant's race is "Asian/Pacific Islander" based on her identification of national origin as "Filipino."
2 The record reflects that the Agency inadvertently entitled its March 6, 2012 reply to Complainant's appeal as a "Motion for a Decision Without a Hearing" instead of "Reply to the Complainant's Appeal." The record further reflects that the Agency reissued Complainant the corrected reply brief on March 8, 2012.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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