01A21553
06-20-2002
Arlene Hunt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arlene Hunt v. United States Postal Service
01A12633 & 01A21553
June 20, 2002
.
Arlene Hunt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A12633 & 01A21553
Agency Nos. 4A-070-0002-98; 4A-070-0147-99; 4A-070-0050-01
Hearing Nos. 170-A0-8453X; 170-A0-8538X; 170-A1-8559X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Modified Distribution Clerk, PS-5,
at the agency's Plainfield Post Office, Plainfield, New Jersey, filed
formal EEO complaints dated December 31, 1997, July 5, 1999 and March 1,
2001 alleging that the agency had discriminated against her on the bases
of race (African-American), sex (female), disability (back injury), age
(D.O.B.6/8/56), and reprisal for prior EEO activity when:
(1) she was subjected to harassment when issued a notice of removal on
August 12, 1997, and on February 18, 1999, and placed on Administrative
Leave on March 24, 1999 (Appeal No. 01A12633);
(2) she was placed on Leave Without Pay and issued a Notice of Removal
on September 29, 2000. (Appeal No. 01A21553)<1>.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
ISSUE PRESENTED
Whether the AJ's decision granting the agency summary judgment was
correct.
BACKGROUND
The AJ in appeal number 01A12633 concluded that complainant failed
to identify any genuine issues of material fact which would warrant
a hearing. Specifically, the AJ found that complainant failed to
demonstrate that similarly situated employees not in complainant's
protected classes were not issued discipline or notices of removal for
unexcused absences from work.
The AJ further found that complainant failed to establish a prima facie
case of disability because she failed to demonstrate that she was an
individual with a disability within the meaning of the Rehabilitation Act.
The AJ concluded that complainant's filing of a Worker's Compensation
claim was insufficient to establish that she was an individual
with a disability. The AJ assumed for purposes of her decision that
complainant established a prima facie case of retaliation but concluded
that there was no dispute that the agency issued a Notice of Removal to
complainant because of her excessive absences from work and her failure
to respond to the agency's letters requesting that she return to work.
Even though complainant disputed that the Notice of Removal was legitimate
because it was not based on the rules of progressive discipline, the AJ
determined that at the time the agency issued the Notice, complainant
had three prior suspensions on her record. Thus, according to the AJ,
it acted based on complainant's record at the time.
In Appeal Number 01A21553, the AJ determined that complainant failed to
raise any genuine issues of material fact regarding the agency's reasons
for issuing a Notice of Removal in September 2000. Specifically, the
AJ found that it was undisputed that complainant had been arrested and
charged with drug possession on August 31, 2001 and that the agency's
removal action was based on a reasonable suspicion that complainant
had committed a crime punishable by imprisonment. The AJ further found
that complainant failed to come forward with sufficient evidence that
similarly situated employees had been treated more favorably than she was.
Complainant asserted that three employees had been charged with various
crimes, but the AJ relied on the fact that there was no evidence these
employees were supervised by the same person as complainant, that like
herself, they had been arrested during working hours or that the Postal
Service was aware of the employees' alleged criminal activity.
The AJ also determined that complainant failed to produce any evidence
the agency's actions were based on her age, race, or her sex other than
her unsupported statements and her contention that her supervisor is
younger than she is. With respect to the basis of retaliation, the AJ
concluded that complainant made no reference to her claim of reprisal
in her affidavit or in her opposition to the Motion for Summary Judgment
aside from a copy of her prior EEO complaints dated over a year earlier.
According to the AJ, there was no evidence that complainant's supervisor
was aware of complainant's protected activity or that any higher
level supervisors who may have been aware, had influenced complainant's
supervisor to act. The AJ concluded that complainant failed to establish
a nexus between her EEO activity in 1998 and the removal action two years
later in 2000. Even assuming that complainant established a prima facie
case of reprisal, the AJ found that complainant failed to present any
evidence the agency's reasons were a pretext for discrimination.
The agency's final order in both cases implemented the AJ's decision.
Complainant makes no statement on appeal, and the agency requests that
we affirm its final orders.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. 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.
In construing the evidence in the light most favorable to complainant, we
note that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes.
Appeal Number 01A12633
In this case, the agency presented evidence that the complainant had an
extensive record of chronic absences due to illnesses and family problems,
some approved and some disapproved. In May 1997, while complainant
was absent due to an injury, the parties received notice that her claim
for Worker's Compensation and her request reconsideration had both been
denied. Based on these factors, the agency issued complainant a letter
requiring her to report for duty or to submit medical documentation
indicating why she could not. Although complainant claims she did not
receive this letter, it is undisputed that complainant failed to respond
and the agency issued a second notice requesting information about her
availability for work. Complainant failed to respond to the second
notice prompting the agency to issue a Notice of Removal. Even assuming
complainant's contention that she later responded and had the removal
notice rescinded through the grievance process, complainant failed to
demonstrate through reliable evidence that there was a discriminatory
motive behind the agency's action. Complainant claims in her affidavit
that she submitted forms and documentation the agency had requested but
the record contains nothing to substantiate her claim or to call into
question the agency's motives for its actions.
A similar chain of events occurred in February 1999 when complainant
had been chronically absent over a period of two to three months.
The agency issued complainant a Notice of Removal because of several
instances of being absent without leave (AWOL). Although complainant
obtained a reduction of the Notice of Removal to a suspension with time
served, complainant failed to produce evidence that the agency's motives
were based on her race, sex, age, disability<2> or in reprisal for her
EEO activity and not because she had been AWOL on a number of days.
In those instances where complainant produced evidence, such as in
her responses to interrogatories, complainant merely stated that all
employees in the Plainfield Post Office were treated more favorably
because they were given progressive discipline. At the time of the
agency's issuance of the Notice of Removal, the record reflects that
complainant had served at least one suspension based on a charge of
conduct unbecoming of a postal employee. Therefore, we find that this
generalized assertion along with documentation of disciplinary action
taken against complainant, did not create a question of fact sufficient
to overcome the agency's Motion for Summary Judgment.
Complainant alleged that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, complainant must show the existence of four elements: (1)
she is a member of a statutorily protected class; (2)she was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Harris v. Forklift Systems,
510 U.S. 17 (1993); Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Based on the evidence in the record, complainant failed to assert
any facts which would indicate the agency's Notice of Removal or other
disciplinary actions taken against her were based on the protected classes
alleged or that they were of a nature to affect the terms or conditions
of her employment. Each of the disciplinary actions at issue in this
case and those serving as background evidence, took place from one
year to two years apart. Thus, even assuming the facts most favorable
to complainant, we find that the facts alleged could not constitute
harassment as a matter of law.
Appeal Number 01A21553
We conclude that complainant's last complaint surrounding a third Notice
of Removal for Unacceptable Conduct was properly decided on summary
judgment. As in her other complaint, complainant failed to come forward
with sufficient evidence to create a genuine dispute of material fact
such that an evidentiary hearing would be necessary. In complainant's
affidavit taken during the investigation, she conceded that she had been
arrested for possession of drugs during her lunch hour. The agency
based its Notice of Removal on the fact that complainant engaged in
conduct potentially warranting incarceration. The record contained a
copy of a letter from complainant's probation officer indicating the
charge against complainant was reduced to a disorderly conduct offense
which was not punishable by incarceration. Complainant's affidavit,
however, contained no assertion that the agency's actions were based on
discrimination and she otherwise offered no documentation or witnesses to
support her contention that the agency's actions were based on her race,
sex, or age.
Reprisal
Concerning the complainant's claim of reprisal, the record indicated that
complainant had engaged in protected activity approximately one year
before the time of the agency's actions in August 1997. Her activity
consisted of the filing of two EEO complaints in May and August 1996 one
of which concerned a 14-day suspension. Complainant's supervisor (S1)
and her second-line supervisor (S2) were aware of the activity as they
were named the responsible management officials. At the time of the
agency's issuance of the Notice of Removal in August 1997, however,
complainant had already been issued a suspension. Therefore, her
claim that she did not receive progressive discipline was not supported
by documentary evidence or other reliable evidence. For this reason,
complainant failed to raise sufficient facts to create a genuine dispute
that the agency's reason for its actions was a pretext for retaliation.
Complainant's second complaint alleged reprisal when she was issued
a Notice of Removal in September 2000. Complainant did not establish
however, that her then first-line supervisor (S3) who was responsible
for issuing the third notice, was aware of her prior EEO activity
which involved S1 or that S3 was motivated to retaliate against her for
bringing a complaint against S1. Although there was some evidence that
complainant's second-line supervisor was aware of complainant's previous
protected activity, the evidence was insufficient to create a question
of fact that there was a nexus between the removal action in September
2000 and her protected activity over a year earlier.
For the foregoing reasons, the Commission finds that there were no
issues of material fact to show that the agency's actions were based
on complainant's race, sex, age or disability or reprisal and that the
grant of summary judgment was proper.
CONCLUSION
Based on our review of the entire record, and arguments and evidence
not specifically addressed herein, the Commission AFFIRMS the agency's
final order finding no discrimination as a matter of law.
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
_June 20, 2002
Date
1Complainant alleged discrimination based on her race, gender, age and
reprisal but not disability as to these issues. These two appeals are
hereby consolidated for a joint decision pursuant to 29 C.F.R.�1614.606.
2Because complainant claims disparate treatment based on her disability,
we assume for purposes of our analysis that complainant is an individual
with a disability under the Rehabilitation Act.