Blanca D. Collins, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 28, 2007
0120071852 (E.E.O.C. Aug. 28, 2007)

0120071852

08-28-2007

Blanca D. Collins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Blanca D. Collins,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071852

Hearing No. 340200600055X

Agency No. 4F-920-0046-05

DECISION

INTRODUCTION

On March 1, 2007, complainant filed an appeal from the agency's February

1, 2007, 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., 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 deemed timely and is accepted pursuant to 29 C.F.R. �

1614.405(a).

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a city carrier at the agency's Post Office in Colton, California.

The record indicated that complainant on March 15, 2005, complainant

clocked out for lunch at 1:15 p.m. Complainant's supervisor (Supervisor)

paged complainant to get her to deliver Express Mail, complainant did

not respond. The Supervisor found complainant in the break room at which

point she told the Supervisor that she was on her lunch break starting

at 1:30 p.m. Complainant checked back in at 1:45 p.m., however she

returned to the break room. The Supervisor noted that complainant had

not returned to work and had complainant return from lunch and clock

back in. The records showed that complainant clocked in twice causing

a time-keeping error. Then, on March 17, 2005, complainant arrived at

work 45 minutes late. The Supervisor and complainant had an exchange.

During the exchange, complainant stated in response to the Supervisor

questioning whether she heard her, complainant stated "I heard you, I'm

not deaf." The Supervisor took these events to a Steward. The events

were investigated. According to the investigation, complainant stated

during the interview that she told the Supervisor "I'm not deaf, you're

pissing me off." Complainant also noted that she got louder during the

exchange because the Supervisor was "pissing her off."

Based upon the investigation and a last chance agreement signed by

complainant in 2003, the Supervisor issued the Notice of Removal. The

Postmaster concurred with the Supervisor's decision. On July 15, 2005,

complainant filed an EEO complaint alleging that she was discriminated

against on the bases of national origin (Hispanic), sex (female), color

(Brown), disability, and reprisal for prior protected EEO activity, when,

on May 21, 2005, she was removed for violating a Last Chance Agreement.

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. Over the complainant's objections, the AJ assigned

to the case granted the agency's February 16, 2006 motion for a decision

without a hearing and issued a decision without a hearing on January 24,

2007. The AJ found that complainant failed to establish her prima facie

case of discrimination. Furthermore, the AJ determined that complainant

failed to show that the agency's legitimate, nondiscriminatory reasons

were pretext for discrimination. The AJ also noted that complainant

filed a grievance which was decided by an arbitrator. As such the AJ

determined that complainant was collaterally estopped from challenging

the removal action.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged. This appeal followed in which complainant argued that the

AJ's decision regarding collateral estoppel was incorrect. Further,

complainant argued that the discovery process had not been completed and

the matter was not ripe for summary judgment. Therefore, complainant

asserted that the AJ's issuance of a decision without a hearing was

inappropriate.

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.

If a case can only be resolved by weighing conflicting evidence, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding a hearing only upon a determination that the

record has been adequately developed for summary disposition. See Petty

v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).

Finally, an AJ should not rule in favor of one party without holding

a hearing unless he or she ensures that the party opposing the ruling

is given (1) ample notice of the proposal to issue a decision without

a hearing, (2) a comprehensive statement of the allegedly undisputed

material facts, (3) the opportunity to respond to such a statement, and

(4) the chance to engage in discovery before responding, if necessary.

According to the Supreme Court, Rule 56 itself precludes summary

judgment "where the [party opposing summary judgment] has not had the

opportunity to discover information that is essential to his opposition."

Anderson, 477 U.S. at 250. In the hearing context, this means that the

administrative judge must enable the parties to engage in the amount

of discovery necessary to properly respond to any motion for a decision

without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

We note that complainant asserted that discovery had not been completed

when the AJ granted the agency's motion for summary judgment. Complainant

has not shown what was not discovered to the alleged premature issuance

of a decision without a hearing. Furthermore, a review of the record

reveals that complainant failed to comply with the agency's discovery

requests. The agency filed a motion to compel complainant to comply which

the AJ granted on June 28, 2006. However, there is no indication that

complainant complied with that order. Therefore, we are not persuaded

by complainant's argument that the summary judgment decision issued by

the AJ on January 24, 2007, was premature.

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). He

must generally establish a prima facie case by demonstrating that

he 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).

Assuming the facts in favor of the moving party, we find that the agency

provided legitimate, nondiscriminatory reasons for the removal action.1

Upon review, we find that the agency has shown that complainant's conduct

on March 15 and 17, 2005, was unacceptable. The record indicated that

the agency investigated the events of those days. As for March 15, the

investigation showed that complainant had clocked in twice after lunch.

Further, on March 17, 2005, complainant informed the investigator that

she stated that the Supervisor was "pissing her off" and stated that

she did not respect the Supervisor. Based on the investigation and the

last chance agreement, we find that the agency has provided legitimate,

nondiscriminatory reasons for the removal action.2

On appeal, complainant argued through counsel that there is a genuine

issue of material fact as to whether she used the term "pissing off"

during the argument on March 17, 2005. We note that complainant's

argument on appeal contradicts the investigation conducted by the agency

when determining the appropriate discipline for complainant. Further,

we find that complainant does not contest the events of March 15, 2005.

Therefore, upon review, we find that complainant has not shown that the

agency's reasons were pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the agency's

final decision 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 28, 2007

__________________

Date

1 For the purposes of analysis, we assume complainant is an individual

with a disability. 29 C.F.R. � 1630.2(g)(1)

2 We note that the AJ erred in relying on the findings of the arbitrator

in issuing this decision without a hearing because the agency's grievance

process does not allow for claims of discrimination to be addressed.

We find that the error of law is not material in that summary judgment

was still appropriate in this case.

??

??

??

??

2

0120071852

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120071852