0120102781
07-13-2012
Carla Hargrave-Perry, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Carla Hargrave-Perry,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120102781
Hearing No. 430-2009-00289X
Agency No. 4K-230-0012-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 7, 2010 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transitional City Carrier at the Agency's Buckroe Beach Station and Hampton Post Office facilities in Hampton, Virginia. On June 2, 2008, Complainant submitted a workers' compensation form stating that she sustained a back injury on May 15, 2008. Complainant's doctor placed her on restrictions including no lifting more than 25 pounds. The Agency offered Complainant a modified limited duty assignment with a lifting restriction of 25 pounds. On June 9, 2008, Complainant's doctor placed her on further restrictions including no lifting more than 10 pounds. On June 9, 2008, the Agency offered Complainant a second modified limited duty assignment in accordance with her restrictions and a work schedule of 1:00 p.m. to 5:00 p.m. with Sunday as her scheduled day off. Complainant initially rejected the second modified job assignment because her scheduled days off were changed and she wanted an earlier start time. On Wednesday June 18, 2008, Complainant failed to report for her scheduled shift and did not call to report her absence. On July 10, 2008, the Agency issued Complainant a Notice of Removal for unsatisfactory attendance and failure to follow instructions.
On January 23, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected her to a hostile work environment on the bases of sex (female) and disability when, on July 10, 2008, the Agency issued her a Notice of Removal and subsequently on September 30, 2008, issued her a letter of decision supporting the removal effective October 3, 2008.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On April 28, 2010, the Administrative Judge (AJ) granted the Agency's unopposed motion and issued a decision without a hearing.
In the decision, the AJ initially assumed arguendo that Complainant had established a prima facie case of discrimination on the alleged bases and determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency affirmed that Complainant was removed because of unsatisfactory attendance and failure to follow instructions. Complainant was scheduled to work on June 18, 2008, but did not report to work or call in to report that she would be absent. As a result, Complainant was removed.
Next, the AJ determined that Complainant had presented no evidence establishing that the Agency's reasons were pretextual. As a result, the AJ found that Complainant had not been discriminated against as alleged. Additionally, the AJ found that Complainant was not subjected to harassment based on her protected classes and had therefore not been subjected to a hostile work environment. The Agency subsequently issued a final order adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in issuing a decision without a hearing as material facts remain in dispute. Specifically, Complainant contends that the Agency had no just cause to terminate her and the Agency's reasons are pretext for sex and disability discrimination. Accordingly, Complainant requests that the Commission reverse the Agency's final order.
ANALYSIS AND FINDINGS
AJ's Issuance of a Decision without a Hearing
The Commission 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.
Upon review of the record, the Commission determines that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. When a party moves for a decision without a hearing, such as the Agency did here, the non-moving party's opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. The Commission finds that Complainant failed to show that there was a genuine issue of material fact in this case, and her arguments on appeal do not undermine the AJ's determination that, even assuming all facts in her favor, a reasonable fact finder could not find in her favor, as explained below. Thus, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
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). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 23, 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. 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the Commission agrees with the AJ that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant's supervisor (S1) affirmed that Complainant was removed for failure to be regular in attendance. ROI, Aff. B, at 5. On June 18, 2008, Complainant failed to report for work as scheduled and failed to notify her supervisor of her inability to report. ROI, Aff. D, at 13. The Customer Services Manager concurred with Complainant's removal based on unsatisfactory attendance. ROI, Aff. C, at 5. Thus, as a result of her failure to report for work or notify her supervisor of her inability to report, Complainant was removed.
Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged discriminatory events, Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. Construing the evidence in the light most favorable to Complainant, the Commission finds that the record is devoid of any evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. Assuming (without deciding) that Complainant was an individual with a disability, we find that she failed to show that she was denied a reasonable accommodation or that any Agency actions were motivated by discrimination. Complainant clearly does not allege that she was required to perform her duties beyond her medical restrictions. Accordingly, the Commission finds that Complainant has failed to show that she was discriminated against as alleged.
Hostile Work Environment
Finally, to the extent that Complainant contends that she was subjected to a hostile work environment with respect to the matters herein, the Commission find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
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 order, 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 (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 (Nov. 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
July 13, 2012
Date
1 Additionally, Complainant alleged that she was discriminated on the bases of sex (female) and disability when she was issued a Letter of Separation for Unsatisfactory Performance on April 18, 2008. The Agency dismissed this claim for untimely EEO counselor contact. Complainant filed a motion to reinstate the claim with the AJ; however, the AJ denied the motion finding that the claim was untimely. Complainant does not challenge the Agency's dismissal of this claim on appeal; therefore, the Commission declines to address this matter further in the instant decision.
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0120102781
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102781