0120081185
05-13-2008
Alicia A. Lowery, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alicia A. Lowery,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081185
Agency No. 1G-772-0009-06
Hearing No. 460-2006-00084X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 4, 2007 final action concerning her
equal employment opportunity (EEO) complaint claiming unlawful 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.
On September 17, 2005, complainant was hired as a casual clerk at the
agency's North Houston Processing and Distribution Center in Houston,
Texas, subject to a ninety-day probationary period.
On March 7, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against her
on the bases of race (African-American) and sex (female) when:
on December 22, 2005, she was terminated from the agency for
unsatisfactory work performance, failure to follow instructions and
insubordination.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). On November 29, 2007, the AJ
issued a decision without a hearing, finding no discrimination. Therein,
the AJ determined that complainant did not establish a prima facie case
of race and sex discrimination because she failed to show that similarly
situated employees, not in complainant's protected classes, were treated
more favorably under similar circumstances. The AJ further determined
that assuming complainant established a prima facie case, the agency
articulated legitimate, nondiscriminatory reason for its action which
complainant failed to show was a pretext.
Complainant's former supervisor (S1) stated that she was the deciding
official to terminate complainant during her probationary period
for unsatisfactory work performance, failure to follow instructions
and insubordination. Specifically, S1 stated that on December 22,
2006, she instructed complainant to perform work in another work area,
but that complainant refused. S1 stated that complainant "had a very
nasty attitude and continued to talk without performing any work."
S1 stated that she asked the Manager of Distribution Operations (MDO)
"to come and talk to the complainant . . . she kept changing her story and
finally we made the decision to terminate." S1 stated that complainant
was in violation of Section 665.51 of the Employee and Labor Manual
which provides that "employees must obey the instructions of their
supervisors."
Regarding complainant's claim that S1 threatened her when she gave her
a new work assignment, S1 denied complainant's claim. S1 stated "at no
point was I rude or hostile the complainant just did not want to perform
the work assignment."
MDO stated that on December 22, 2006, S1 notified him that she was
in the Attendance Control Office (ACO) with complainant and that she
was considering terminating complainant. MDO further stated that he
went to the ACO and discussed the incident with S1 and complainant.
MDO stated that S1 informed him that she had instructed complainant to
work at the Low Cost Tray System twice, but that complainant refused
to follow her instructions. MDO stated that after the third time,
complainant "still did not go and told [S1] that she 'just wanted to
go home.'" MDO stated that S1 then instructed complainant to report
to the ACO and that she would be terminated from agency employment.
MDO stated that after his interview with complainant, he met with S1
"to discuss the incident and the complainant's account of the incident.
[S1] and I agreed that not only had the complainant repeatedly failed
to follow a direct instruction, she wasn't consistent in her statements
and wasn't being truthful about what had occurred." MDO stated that at
that time he concurred with S1's determination to terminate complainant.
Regarding complainant's claim that she was treated differently from
two identified Hispanic employees, MDO denied complainant's claim.
MDO stated that according to S1 the two employees "were gainfully
employed and productive at each of the several times [S1] observed their
work practices. [S1] stated that only the complainant was unproductive
and that was the reason for moving the complainant and not the other
two employees."
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a 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 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 discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 13, 2008
__________________
Date
2
0120081185
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081185