0120083964
04-30-2010
Carmen Rosado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service Agency.
Carmen Rosado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
Agency.
Appeal No. 0120083964
Hearing No. 510-2008-00196X
Agency No. 4-A-006-0092-07
DECISION
On September 19, 2008, complainant filed an appeal from the agency's
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, as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission affirms the agency's final order.
ISSUES PRESENTED
The issue presented are whether complainant was discriminated against
on the bases of sex (female), retaliation (prior EEO activity) and
disability when she was denied a reasonable accommodation on October 3,
2005, issued a letter of warning for unsatisfactory attendance on May 9,
2007, and subjected to harassment in the form of verbal abuse, deduction
of hours, and work assignment on unspecified date (s).
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Window Clerk for the agency's postal facility in Yabucoa, Puerto Rico.
She sought counseling on May 9, 2007, and ultimately filed a formal
complaint on September 10, 2007.
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. After considering the agency's motion for summary
judgment and complainant's response, the AJ issued a decision without
a hearing finding no discrimination. The agency subsequently issued a
final order adopting the AJ's conclusions.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
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).
A thorough review of the evidentiary record reveals the AJ's decision to
issue a decision without a hearing is in accordance with these standards.
Complainant's first claim, namely, that she was denied a reasonable
accommodation in October 2005, was dismissed by the AJ pursuant to
29 C.F.R. � 1614.107(a)(2), as untimely brought to the attention of
an EEO counselor. Commission regulations provide that allegations of
discrimination must be brought to the attention of an EEO counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory. 29 C.F.R. � 1614.105(a)(1). It was not until May 9, 2007,
about a year and a half later, that complainant spoke to an EEO counselor
about being denied an accommodation in the form of a reassignment.
Because the record contains no evidence which warrants an extension of
the limitations period, the Commission affirms the agency's adoption of
the AJ's decision to dismiss this claim.1
We now turn our attention to the merits of complainant's remaining
claims, that is, the letter of warning issued on May 9, 2007, and
the creation of a hostile work environment on unspecified date(s).
We presume, without finding, that complainant is an individual with
a disability. The evidence of record shows that complainant received
a letter of warning for using four weeks of leave without pay from
February 26 - March 24, 2007. After repeated attempts to obtain medical
documentation from complainant supporting those absences, management
issued a letter of warning pursuant to an agreement reached between the
agency and complainant in 2006, after she had taken leave without pay
from September 2005 to August 2006. It is these repeated attempts, as
well as having to work in the postal office for a three hour period alone
one evening because her manager left early for the day, and a co-worker's
tour-of-duty ended three hours before hers, which comprise complainant's
harassment claim. As stated in the AJ's decision, the agency did not
violate any anti-discrimination laws by issuing the letter of warning,
nor subject complainant to harassment by seeking medical documentation.
In both cases, management was following legitimate agency procedure.
Further, under prevailing harassment standards, being required to work
in a post office by one's self for a three hour period does not rise to
the level of creating a hostile or intimidating work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not addressed in this decision, the Commission affirms
the agency final order which adopts the findings and conclusions of the
Administrative Judge.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
____4/30/10______________
Date
1 Complainant is advised that agencies have an on-going duty to
accommodate individuals with disabilities, and to the extent she believes
her condition presently requires an accommodation, she should consult
with appropriate agency officials.
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0120054567
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083964