01A55799
08-29-2006
Terri L. Baker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terri L. Baker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55799
Hearing No. 340-2004-00573X
Agency No. 1F -906-0034-03
DECISION
On September 2, 2005, complainant filed an appeal from the agency's August
25, 2005 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.
At the time of events giving rise to this complaint, complainant worked
as a Mailhandler at the Worldway Airport Mail Facility.
On March 26, 2003, complainant contacted an EEO Counselor and filed a
formal EEO complaint on June 14, 2003, alleging that she was discriminated
against in reprisal for prior protected EEO activity.
By letter dated July 2, 2003, the agency accepted the complainant's
complaint for investigation and determined that complainant's complaint
was comprised of the following claims:
1. on [March 26, 2003], complainant was issued a Notice of Removal,
charging her with conduct unbecoming a postal employee, subsequently
reduced to a 14-day suspension; and
2. on unspecified dates, complainant was subjected to ongoing
harassment by a named shop steward and management took no action.
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. Thereafter, the AJ granted the agency's motion
for a decision without a hearing and issued a decision on July 7, 2005.
Regarding claim (1), the AJ found that complainant failed to establish a
prima facie case of retaliation. Specifically, the AJ stated that "the
evidence does not establish a causal connection because the previous EEO
activity is too distant in the past..." In addition, the AJ concluded
that assuming arguendo that complainant established a prima facie case
of retaliation, complainant failed to establish by a preponderance
of the evidence that the agency's articulated reasons for its actions
were pretextual. Specifically, the AJ stated that two agency managers
believed that complainant was responsible for a verbal altercation
with another employee (E1) after conducting an investigation and thus,
she was issued a Notice of Removal, which was subsequently reduced to
a 14-day suspension.
The AJ dismissed claim (2) for untimely EEO Counselor contact.
Specifically, the AJ stated that complainant failed to demonstrate
why she did not contact an EEO Counselor until 86 working days after
the last incident of harassment. The AJ, in his decision, stated
that complainant's harassment claim was comprised of the following
two incidents 1) E1 telling a supervisor in December 2002, to watch
complainant go to lunch; and 2) on December 30, 2002, E1 and another
co-worker drove "the tractor down to [c]omplainant's car and scratched
it."
The agency subsequently issued a final order dated August 25, 2005,
adopting the AJ's decision.
In response to complainant's appeal, the agency requests that we
affirm its final order. Regarding claim (2), the agency states that
even if claim (2) is timely "[c]omplainant failed to offer evidence
sufficient to show that the alleged incidents were in any way related
to her membership in a protected class or that the alleged incidents
were severe or pervasive."
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.
Claim (1)-Notice of Removal Reduced to a Suspension
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). She
must generally 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 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)
The Commission finds that the record supports the AJ's determination
that the agency articulated a legitimate, nondiscriminatory reason for
its actions. The record contains an affidavit from a named manager (M1).
Therein, M1 states that complainant was issued a Notice of Removal for
conduct unbecoming a postal employee. M1 further asserts that on March
3, 2003, complainant was involved in an incident with E1. M1 asserts
that an investigation was conducted and that based on the statements
of witnesses and a report issued by the Postal Inspector, management
concluded that complainant was the aggressor in the incident.
The Commission further finds that the record supports the AJ's
determination that complainant failed to show that the agency's
articulated reasons for its actions were pretext for retaliation. While
complainant, in her affidavit, asserts that E1 was brought back to work
before she was following the March 3, 2003 incident, M1, in her affidavit,
states that "[t]he return dates [were] different due to [the] union and
[E1] settl[ing] on the offer sooner, [complainant] and the union did not
accept the offers that were given at the step 1 meeting." In addition,
as set forth above, M1 asserts that management believed that complainant
was the aggressor with respect to the March 3, 2003 incident.
Claim (2)-Harassment by E1
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Upon review of the record, we find that the AJ improperly dismissed
claim (2) for untimely EEO Counselor contact. The record reflects that
complainant is alleging that E1 harassed her and that management failed
to take appropriate action. While the AJ determined that complainant's
harassment claim comprised only two incidents that occurred in December
2002, we disagree. A fair reading of the record reflects that complainant
was also alleging that E1 harassed her based on their verbal altercation
on March 3, 2003. The record reflects that complainant initiated
EEO Counselor contact on March 26, 2003; thus, complainant initiated
EEO Counselor contact within 45 days of one of the alleged incidents
comprising complainant's harassment claim.
Nevertheless, the Commission finds that the alleged incidents comprising
complainant's harassment claim are not sufficiently severe or pervasive
to state an actionable claim of harassment.1 See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). In addition,
we note that complainant did not allege that she was being harassed
by E1 based on a protected class under the Commission's regulations.
The record contains a copy of the agency's interrogatories. Therein,
the agency asked complainant if she was claiming that she was harassed
by E1 for "some discriminatory purpose (race, age, sex, retaliation)"
and to state the facts in support of her claim. Complainant responded
that "[E1] harassed me when I purchased a new truck and was jealous.
On March 3, 2003, after asking her if she wanted to see me she [began]
arguing about my house and my car note." Based on these circumstances,
we find that complainant has failed to set forth an actionable claim of
harassment under the Commission's regulations.
Accordingly, for the reasons stated herein, we find that the AJ properly
granted summary judgment, as no genuine dispute of material fact exists
and we AFFIRM the agency's final order implementing the AJ's decision
finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 29, 2006
__________________
Date
1 The Commission notes that the agency in its motion for a decision
without a hearing and in its opposition to complainant's appeal asserted
that the alleged incidents comprising complainant's harassment claim
were not sufficiently severe or pervasive to state an actionable claim
of harassment.
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01A55799
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A55799