0120132199
09-05-2013
Aida L. Mendez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Aida L. Mendez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120132199
Hearing No. 520-2012-0003X
Agency No. 4B-110-0076-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 4, 2013 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. 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 worked as a City Letter Carrier at the Agency's Ridgewood, New York Post Office.
On April 8, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of age (over 40) and in reprisal for prior protected activity when:
1. on or about February 28, 2011, she was issued a Letter of Warning (LOW) dated February 23, 2011, for Failure to Perform Duties of Your Position; and
2. on April 11, 2011, she was issued a 7-Day No Time Off Suspension for Failure to Follow Instructions.1
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On September 14, 2012, the AJ issued a decision by summary judgment in favor of the Agency.2
In her decision, the AJ found no discrimination. Specifically, the AJ found that Complainant did not establish a prima facie case of age and reprisal discrimination. The AJ further found that assuming arguendo that Complainant established a prima facie case of age and reprisal discrimination, the Agency nevertheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim 1, the former Acting Supervisor Customer Services stated that during the relevant period, he was one of Complainant's supervisors. The supervisor was the deciding official to issue Complainant a LOW dated February 23, 2011 for failure to perform her duties. Specifically, the supervisor stated that Complainant "is required, like all carriers to complete a PS Form 3996 prior to leaving for the street indicating how much overtime or assistance they need. [Complainant] did not complete the form and called in from the street saying she couldn't complete her route without overtime or assistance. She has been on this route for years and knows her route and knows when she needs overtime or assistance before leaving the office. I require all carriers to follow this."
The record reflects that in the February 23, 2011 LOW, the supervisor determined that Complainant was in violation of Sections 112.1, 112.21, 131.42 and 131.43 of the Carrier Handbook and Sections 666.1 and 665.51 of the Employee and Labor Relations Manual. Moreover, the supervisor stated that it was his job "to make sure we conserve overtime and try to make things efficient. [Complainant] failed to follow my instructions 3 times. I don't have anything against her or any carrier. If any carrier messes up I have to correct it. It's just my job."
Regarding claim 2, the supervisor stated that he issued Complainant a 7-Day No Time Off Suspension for failure to follow instructions. The supervisor stated that on February 19, 2011, Complainant "turned in a PS Form 3996 for 30 minutes. Instead of giving the thirty minutes, I told her to bundle her DPS mail and not to waste more time in the office. I told her three times to bundle her DPS mail and she refused and asked what I was talking about. She knew my instruction and she failed to follow my instructions."
The instant appeal followed.
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, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's decision to resolve this case by summary judgment or the ultimate finding of no discrimination. Complainant has not sufficiently identified material facts in dispute and we find that the AJ's findings of fact are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's age or prior protected activity.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.3
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 5, 2013
__________________
Date
1 The record reflects that claim 2 was later amended to the instant formal complaint. The record reflects that both the LOW and the seven day suspension were settled through a grievance. The LOW was expunged and the seven day suspension was reduced to a discussion.
2 In its final action, the Agency inadvertently determined that the AJ issued a decision on March 27, 2013, instead of September 14, 2012.
3 On appeal, Complainant does not challenge the April 20, 2011 partial dismissal issued by the agency regarding four other claims (that she was discriminated against on the bases of age and prior protected activity when on March 10, 2011, her supervisor told her it wasn't his job when she asked him questions; on April 4, 2011, when she filed a safety form 1767, her supervisor told her it wasn't his job, but hers, to move hampers that were blocking her route; on April 5, 2011, her manager told her she wasn't pulling her route down "80 per minute;" and her pay adjustment of December 27, 2010 wasn't processed until March 10, 2011). Therefore, we have not addressed these issues in our decision.
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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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