0120100586
08-16-2012
Wendy R. Watson-Robinson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Wendy R. Watson-Robinson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120100586
Hearing No. 560-2008-00061X
Agency No. 6W000000707
DECISION
On November 23, 2009, Complainant filed an appeal from the Agency's October 9, 2009 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 deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accounting and Control Specialist, Level 16, Terminal Dues Group, which is located in St. Louis, Missouri. On July 9, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity (arising under Title VII) when: (1) on March 28, 2007, her PS Form 3971 Request for Absence for April 2, 2007 was disapproved; (2) from March 29, 2007 through May 7, 2007, she was off work due to work-related stress; and (3) on May 7, 2007, she was involuntarily reassigned out of her detail in the Control Group and returned to her bid position in the Terminal Dues Group.
At the conclusion of the investigation, the Agency provided Complainant 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. On June 17, 2008, the Agency filed a motion for summary judgment. Complainant submitted a response to the Agency's motion on May 8, 2009, which was not timely. However, the AJ considered Complainant's response and issued a decision without a hearing on September 29, 2009. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
In her decision, the AJ noted the following undisputed facts which were viewed in a light most favorable to Complainant. During the relevant time-frame, Complainant was working in a detail position as an Accounting and Control Specialist, Level 16, in the Control Group. The supervisor of the International Accounting Section (S1) was Complainant's immediate supervisor at the time. The Manager, International Accounting Branch (S2) was Complainant's second-line supervisor during the relevant time-frame.
On March 15, 2007, Complainant filed a formal EEO complaint in which S2 was identified as the responsible management official. S2 admits that she was aware of Complainant's prior EEO activity. Prior to March 12, 2007, S1 did not know and had never worked with Complainant. In addition, S1 testified that she was not aware of Complainant's prior EEO activity. According to Complainant, immediately after filing her prior EEO complaint, Agency management officials began retaliating against her and created a hostile work environment regarding her leave and working conditions. Complainant provided three incidents to support her allegations of retaliation.
Issue 1 - Denied Leave
On March 28, 2007, Complainant left work, called into the office requesting sick leave, and did not return to work until May 7, 2007. Also on March 28, 2007, Complainant called-in again and requested eight hours of annual leave for April 2, 2007. S1 denied Complainant's annual leave request for April 2, 2007, based upon the "needs of the service," because Complainant was scheduled to train another employee (C1) on her processes in order to clear up delinquent accounts. On April 3, 2007, after her request for annual leave was denied, Complainant called in and requested eight hours of sick leave for April 2, 2007, in order to attend two doctor's appointments she had scheduled on April 2, 2007. S1 approved Complainant's sick leave request and instructed her to bring documentation of her appointments upon her return to work. S1 denied C1's annual leave request for April 2, 2007 based on his need for training with Complainant. S1 also denied another employee's (C2) annual leave request for March 28, 2007 and April 2, 2007, due to heavy mail volume. In addition, S1 denied another employee's (C3) annual leave request for April 2, 2007, due to heavy mail volume. The only approved annual leave for this period was for such leave that was requested and scheduled in advance for vacation time.
Issue 2 - Work Related Stress from March 29 to May 7, 2007
Complainant asserts that on March 27, 2007, S1 refused an offer from one of Complainant's co-workers (C4) to assist with training C1. However S1 denies this assertion. Instead, S1 asserts that she told Complainant, C1 and C4 that Complainant was responsible for C1's training, and if time permitted, C4 could assist with the training.
The record also shows that on March 29, 2007, Complainant hung up the phone while speaking to S1. S1 called Complainant back and told her to report to her office. Complainant claims that S1 threatened her with discipline. S1 asserts that she told Complainant that her conduct was disrespectful and inappropriate, and that if she disrespected her again, corrective action could result. Complainant also claims that S1 demanded that she have an outstanding report completed by noon that day even though such report did not have a due date. S1 disagrees with Complainant's characterization and asserts that Complainant was told to complete the report by noon because she had failed to complete the report after having been told a week prior that it was due on March 29, 2007. Instead of completing the report, Complainant left work on sick leave.
On April 2, 2007, Complainant was seen by a physician (P1) for an unspecified medical complaint. On that same date, a different physician (P2) diagnosed Complainant with panic attacks and placed her off work until April 9, 2007. On April 3, 2007, Complainant requested sick leave for April 2 through April 6, 2007 for two doctor's appointments. S1 approved Complainant's sick leave request and instructed her to bring documentation of her appointments upon her return to work. It is undisputed that, on April 9, 2007, instead of returning to work, Complainant began treatment with a third physician (P3) for major depression and generalized anxiety disorder. P3 recommended that Complainant be off work until he released her. On May 7, 2007, Complainant returned to work after being absent since March 28, 2007.
Issue 3 - Reassigned From Control Group to Terminal Dues Group
Complainant was detailed into the Control Group as an Accounting and Control Specialist in order to help reconcile approximately 64 accounts to the general ledger. Since Complainant was on sick leave, S1 detailed another employee into the Control Group to assist with the workload. In addition, while Complainant was on sick leave, the Office of the Inspector General discovered a $30,000,000 error that Complainant overlooked while she was detailed to the Control Group. When Complainant returned to work on May 7, 2007, S1 told Complainant about the error that was discovered. Complainant was then reassigned back to her bid position as an Accounting and Control Specialist in the Terminal Dues Group. On May 11, 2007, Complainant complained to the Threat Assessment Team ("TAT") that S1's threatening, harassing and intimidating behavior was creating an unsafe and hostile working environment. On May 18, 2007, which was Complainant's scheduled off day, the TAT investigated Complainant's complaint. After investigating Complainant's claims, the TAT determined that there was no evidence substantiating Complainant's complaint of an unsafe or hostile working environment.
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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.
With respect to Claim 1, the AJ concluded that Complainant failed to present evidence to refute the Agency's articulated, legitimate, non-retaliatory reason for the denial of annual leave (i.e., that Complainant's annual leave was denied because she was responsible for training another co-worker on the processes to reconcile several accounts to the general ledger). In addition, the AJ noted that Complainant failed to present evidence that similarly situated employees, who did not engage in prior EEO activity, were treated more favorably. In fact, the AJ noted that the evidence demonstrates that S1 denied several other specialists' requests for annual leave during the same time period based upon the agency's workload and/or the needs of the service.
With respect to Claim 2, the AJ concluded that while Complainant contends that her medical conditions were due to S1's harassing behavior, the evidence reveals that S1 simply required Complainant to perform the duties of her job. The AJ noted that Complainant failed to present any evidence that S1's conduct in requiring her to justify her leave or to complete a report she was required to do was so intimidating that it created an intolerable working environment. Moreover, the AJ concluded that the record is devoid of evidence that suggests that S1's behavior or Complainant's subsequent leave of absence was in any way related to her prior EEO activity.
Lastly, with respect to Claim 3, the AJ concluded that the undisputed record shows that the Agency terminated Complainant's detail assignment because the Office of Inspector General discovered a serious accounting error that Complainant overlooked. Moreover, the AJ concluded that the record is devoid of evidence to show that Complainant's prior EEO activity was a factor in her reassignment.
CONCLUSION
We agree with the AJ's findings of fact and conclusions of law. Based on a thorough review of the record and the contentions on appeal,1 including those not specifically addressed herein, we AFFIRM the final agency action. We note that in addition to finding the record devoid of evidence to establish that the Agency's articulated, legitimate, non-retaliatory explanations were a pretext, we also find the record devoid of evidence establishing that S1 had notice of Complainant's prior EEO activity during the relevant time-frame.
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 tends 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
August 16, 2012
__________________
Date
1 We do not find Complainant's assertions on appeal persuasive. For example, contrary to Complainant's assertion, we find the record adequately developed. Specifically, Complainant asserts that the investigation failed to explore the extent of S1 and S2's personal relationship. However, such information (and other information) could have been developed by Complainant during the pre-hearing discovery phase. We also find Complainant's assertion that S1 was merely a "pawn" used by S2 to retaliate to be a bare, uncorroborated assertion and insufficient herein to raise a genuine dispute of material fact.
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01-2010-0586
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013