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.
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0120071852
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071852