0120101991
07-13-2012
Cheryl R. Campbell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Cheryl R. Campbell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120101991
Hearing Nos. 170-1999-8365X, 170-1999-8392X
Agency Nos. 1C-191-0152-98, 1C-191-0173-98
DECISION
Complainant filed an appeal from the Agency's final order dated March 11, 2010, finding no discrimination with regard to her complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
The record indicates that Complainant initially contacted an EEO Counselor on April 30, 1998, and May 8, 1998, and filed her complaints on October 15, 1998. The Agency identified the claims as whether Complainant was discriminated against based on sex (female - sexual harassment) and in reprisal for prior EEO activity when:
(1) On an unspecified date, Tour 1 Manager granted her favors and preferences (leave to end her tour early because of child care problems without the required paperwork) that she never solicited and which resulted in harassment by other postal workers about her alleged relations with the manager;
(2) On an unspecified date, the manager told her that she was all his and that he could not allow her to go to another tour or be transferred;
(3) On an unspecified date, she was harassed by other female employees with statements like, "You're sucking [the manager's] dick" and "You're having sex with [the manager]";
(4) On unspecified dates, she was loaned out to an identified supervisor's area routinely, so she was caught between the two women who had a relationship with the manager;
(5) On unspecified dates, the manager came to her work area on a daily basis watching, smiling at, or asking about her;
(6) On an unspecified date she was issued a 5-Day Suspension;
(7) On or about April 24, 1998, she was put on Emergency Placement in Off-Duty Status (Without Pay) for Disruption in the Workplace/Failure to Follow Instructions/Unauthorized Absence from Duty Assignment;
(8) On May 8, 1998, she received a 14-Day Suspension for Disruption in the Work Place/Failure to Follow Instructions/Unauthorized Absence from Duty Assignment;
(9) On or about May 14, 1998, she was assigned to work roller table 88, which is a heavy work table, without any help to maintain the work load;
(10) On or about May 16, 1998, another supervisor told her that they could make up rules as they go along and that they did not have to follow proper procedures when it comes to discipline and they did not have to put anything in writing; later that day, the shop steward told her that the manager was putting her on notice pending removal from the post office; and
(11) On May 22, 1998, she was issued a 14-Day Suspension for Failure to Follow Instructions/Unauthorized Curtailment of Tour.
Upon completion of the investigation of the complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ) on June 12, 1999. During the pendency of the hearing, on October 22, 1999, the parties entered into a settlement agreement resolving the complaints at issue. Thereafter, on March 19, 2007, Complainant claimed that the Agency breached the settlement agreement. The Agency determined that it fully complied with the terms of the settlement agreement. Upon Complainant's appeal, the Commission, in EEOC Appeal No. 0120072688 (September 13, 2007), reversed the Agency's determination and ordered the Agency to provide Complainant the option to either return to the status quo prior to the settlement agreement or to obtain specific performance of the agreement. Upon Complainant's request, the Agency resumed the processing of her complaints and a hearing was resumed. On March 1, 2010, the AJ issued a decision without holding a hearing, finding no discrimination.1 The Agency's final order implemented the AJ's decision.
ANALYSIS AND FINDINGS
Commission 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Moreover, despite Complainant's contentions on appeal, we find the record was fully developed.
In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. The AJ noted that in February 1996, Complainant, upon her request, transferred to the Philadelphia, Pennsylvania Bulk Mail Center (BMC) into the Mailhandler craft as a Part-Time Flexible (PTF) employee from the Princeton, New Jersey Post Office where she had been a Full Time Carrier. Complainant claimed that since her transfer to the BMC, she was subjected to a hostile work environment.
With regard to claim (1), Tour 1 Manager denied granting Complainant any favors and preferences. Specifically, the manager stated that since Complainant was a PTF Mailhandler, it was not necessary for paperwork to curtail her tour as long as she worked 4 hours. The Agency stated that within three months of arriving at the BMC, Complainant requested to be moved to Tour 3 from her Tour 1 shift due to her difficulty in procuring child care. It was this request which prompted the manager to temporarily assign Complainant to Tour 3 from July 6, 1996, to October 4, 1996. Complainant does not dispute this.
With regard to claim (2), the manager denied making the alleged statement to Complainant. He stated that he did tell her that he could not see any other facility accepting her with her record, and that she was already turned down for a transfer by Philadelphia Processing and Distribution Center (PDC). The manager indicated that an identified Plant Manager of the Philadelphia BMC also turned her request down for Tour 3. Complainant does not dispute this. In fact, the manager did reassign Complainant to Tour 3 from his Tour 1, described above.
With regard to claim (3), the manager stated that a female employee told him that Complainant told her "she was doing the same thing to some [sic] else." He indicated that since everyone blamed each other about the situation, he investigated the issues and placed all parties on notice, made the necessary referral, and told everyone to keep their distance.
With regard to claim (4), the manager indicated that no PTF employees, including Complainant, were loaned to any supervisor, and that Complainant and other PTF employees were sent in areas where there was shortage in staffing.
With regard to claim (5), the manager denied that he was in any work area to stand and glare/stare at anyone, including Complainant as she alleged. We find that claim (5) is too generalized to show Complainant was being harassed. Even if the claim constituted harassment, we find that Complainant has not shown that the incidents were motivated by sex discrimination or were in retaliation for protected EEO activity.
With regard to claim (6), Complainant claimed that the manager issued her a 5-day Suspension. Complainant acknowledged that during the relevant time period, i.e., in November 1997, she walked off the job and the normal penalty for such action would have been a 14-day suspension or termination.
With regard to claim (7), Complainant's supervisor (S1) stated that he issued Complainant the alleged discipline because he initially noticed her missing from her job assignment during the relevant time period at issue. S1 then paged Complainant several times, and when she arrived he instructed her to work the mail off roller table 57 and not to leave until her break. Five minutes later, S1 received a radio call informing him that the mail for roller table 57 was hitting the misspent at a high rate. S1 returned to the table to find Complainant missing again without authorization. After she was paged again several times, Complainant reported to the main office and was argumentative. S1 indicated that he then had Complainant removed from the facility and issued the Emergency Placement in Off-Duty Status. The manager stated that he concurred with S1's decision.
With regard to claim (8), S1 stated that Complainant was issued the 14-day suspension based on the foregoing incident of April 25, 1998, described in claim (7).
With regard to claim (9), Complainant indicated that she was assigned to work roller table 88 which was a heavy work table. However, there is no evidence that this work was any heavier than her prior work. Furthermore, there is no evidence that Complainant sought any assistance from S1 for her work at the relevant time period and was denied such request nor is there any evidence that she was treated any differently than a similarly situated employee under similar circumstances.
With regard to claim (10), Complainant claimed that management was proposing to issue her a disciplinary action or a notice of removal. The Agency indicated that on June 11, 1998, S2 subsequently issued Complainant a Notice of Removal. S2 stated that previously, on June 5, 1998, in the presence of Complainant's union steward, he and another supervisor (S3) gave Complainant a direct order not to curtail her tour.2 That very day, Complainant left the facility at 7 a.m. curtailing her tour hours. Complainant does not dispute this. The Agency stated that its records showed that Complainant left at 7 a.m. each day since May 21, 1998, despite being told not to do so. The Agency noted that the removal was subsequently settled via a grievance on October 16, 1998, and Complainant was to return to duty after a fitness for duty examination.3
With regard to claim (11), Complainant claimed that she was issued a 14-day Suspension by another supervisor (S2). S2 stated that Complainant failed to work her scheduled hours as instructed by leaving at 7:00 am from May 1 - 14, 1998. S1 also stated that he instructed Complainant on May 15, 1998, not to leave early, but she again left early on May 15, 19, and 20, 1998. Complainant does not dispute this.
Based on the foregoing, the AJ found and we agree that Complainant failed to show that she was subjected to a hostile work environment based her sex or prior EEO activity. The AJ further found and we also agree that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents. Upon review, we find that Complainant has failed to show that the Agency's actions were motivated by discrimination as she alleged.
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
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 (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 (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
7/13/12
__________________
Date
1We note that in her complaint, Complainant also included eleven additional issues occurring from 1996 to February 23, 1998. On March 8, 1999, the Agency dismissed those issues. There is no indication in the record that Complainant challenged the dismissal of these issues to the AJ or raised the matters in the instant appeal. Therefore, we will not address these issues in this decision.
2 The Agency noted that during the relevant time period at issue, Complainant's tour did "not end before 8:12 hours."
3 The Agency noted that on February 26, 1999, Complainant resigned but was reinstated on January 1, 2000, under the October 22, 1999 settlement agreement concerning the instant complaints, as described in this decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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