0120060879
10-31-2007
Christina A. Hartman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Christina A. Hartman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200608791
Hearing No. 150-2005-0539X
Agency No. 1H336000705
DECISION
Complainant filed an appeal from the agency's December 5, 2005 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. 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Processing Clerk at the agency's Processing and Distribution
Center in Tampa, Florida. Complainant contacted an EEO Counselor and
filed a formal EEO complaint on December 19, 2004, alleging that she was
discriminated against on the bases of her race (Caucasian), disability
(foot surgery), and in reprisal for prior protected EEO activity when
on or about September 23, 2004, complainant learned that management
officials allowed other employees to work on the work-room floor while
wearing open-toed shoes, yet she was prohibited from doing so.
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. When the complainant did not object, the AJ
assigned to the case granted the agency's September 26, 2005 motion
for a decision without a hearing and issued a decision on October 19,
2005, finding no discrimination. The AJ found that assuming, arguendo,
complainant established a prima facie case of race, disability and
reprisal discrimination, the agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, that agency
policy prohibits the wearing of open-toed shoes while on the work-room
floor and that the employees who were permitted to wear open-toed shoes,
in violation of that policy, unlike complainant, had been injured on
the job and were covered under the Federal Employees' Compensation Act.
The AJ concluded that complainant failed to show that the agency's
articulated reasons were a pretext for unlawful discrimination.
On appeal, complainant contends that the AJ erred in issuing a decision
without a hearing because there are genuine issues of material fact in
dispute. Complainant also contends that during a pre-trial conference
on September 27, 2005, the AJ denied the agency's motion for a decision
without a hearing and stated that "she was going to return to her office
and file for a motion to produce additional documents." (Complainant's
Brief on Appeal). Complainant states that the AJ failed to issue that
request for additional documents and, instead, issued a decision granting
the agency's motion for a decision without a hearing. Complainant argues
that she did not respond to the agency's motion because the AJ initially
denied the motion during the pre-trial conference, and, therefore,
the AJ's decision granting the agency's motion should be reversed.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. We concur with the AJ's finding that assuming, arguendo,
complainant established a prima facie case of race, disability and
reprisal discrimination, the agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. The record reflects
that agency policy requires employees to wear shoes that are "fully
enclosed at heel, toes, sides, and instep." (Report of Investigation,
Affidavit C, 49). The record also reflects that several employees have
been permitted to wear open-toed shoes, in violation of this policy, as
an accommodation for their on-the-job injuries. (R.O.I., 13; Affidavit
B, C). Further, a review of complainant's medical documentation reflects
that, at the relevant time, complainant was not medically required to
wear open-toed footwear. (R.O.I., Affidavit C, 8-25). Accordingly,
we concur with the AJ's finding that complainant failed to show that the
agency's articulated reasons for its actions were a pretext for unlawful
race, disability, or reprisal discrimination.
With respect to complainant's claims on appeal, we find that, assuming
complainant's contentions are true, and her failure to respond to the
agency's motion for a decision without a hearing was due to the AJ's
initial denial of the agency's motion during the September 27, 2005,
pre-trial conference, the AJ's actions amounted to harmless error.
In so finding, we note that complainant has proffered no evidence to show
that there are any genuine issues of material fact which would require
a hearing. Accordingly, we find that viewing the record evidence in
a light most favorable to complainant, the AJ appropriately issued a
decision without a hearing finding no discrimination. Therefore, we
discern no basis to disturb the AJ's decision and the agency's final
order is affirmed.
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
October 31, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120060879
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036