0120093064
04-27-2011
Christine Doxey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Christine Doxey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120093064
Hearing No. 471-2008-00113X
Agency No. 1J-487-0003-08
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s June 18, 2009 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Maintenance Operations Support Clerk at the Agency’s
Processing and Distribution Center in Kalamazoo, Michigan. On February
6, 2008, Complainant filed a formal complaint alleging that the Agency
discriminated against her in reprisal for prior protected EEO activity
when, since July 1, 2007, she has been denied the opportunity to work
overtime.
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. Over Complainant’s objections,
the AJ granted the Agency’s motion and issued a decision without a
hearing on June 15, 2009.
In her decision, initially, the AJ determined that Complainant had not
established a prima facie case of reprisal as she failed to show that a
similarly situated employee outside her protected group was treated more
favorably. The AJ noted that the identified comparators worked different
shifts with different non-scheduled days and under different supervisors.
Nonetheless, the AJ assumed Complainant had established a prima facie
case of reprisal discrimination and found that the Agency had articulated
legitimate, nondiscriminatory reasons for its actions. Namely, the Agency
only uses overtime when it is needed. Further, Complainant does not
have a right to be given overtime when it is not needed or regular time
can be used. The AJ noted that Complainant actually received overtime
during the period in question; however, she claimed that she should have
received more. In addition, Complainant’s supervisor (S1) provided
many overtime opportunities, but Complainant’s attendance was very poor.
Next, the AJ determined that Complainant had presented no evidence
establishing that the Agency’s reasons were pretextual. Accordingly,
the AJ found that Complainant had not been discriminated against as
alleged. The Agency subsequently issued a final order adopting the
AJ’s decision.
On appeal, Complainant contends that the AJ erred in issuing a decision
without a hearing because issues of genuine fact remain. Complainant
argues that she was available for overtime during the time in question,
but was not afforded overtime opportunities because of her prior
protected EEO activity. Complainant reiterates arguments related to the
identified comparators who were granted overtime opportunities and argues
that she has identified a pattern of disparate overtime opportunities.
Accordingly, Complainant requests that the Commission reverse the final
order. The Agency requests that the Commission affirm the final order.
ANALYSIS AND FINDINGS
Standard of Review
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.
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. Dep’t of Def., 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).
The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, “there is a need for strident
cross-examination and summary judgment on such evidence is improper.”
Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
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. The Commission concludes that, even assuming
all facts in favor of Complainant, a reasonable fact finder could not
find in her favor, as explained below. Therefore, no genuine issues of
material fact exist. Under these circumstances, the Commission finds
that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment (Reprisal)
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For Complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the Agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
Complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June
8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
Upon review, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions as stated above. Specifically,
Complainant’s supervisor (S1) affirmed that she could not recall an
instance where Complainant was denied the opportunity to work overtime.
ROI, Aff. B, at 2. Further, S1 maintained that she schedules overtime
based on the needs of her tour. Id. In addition, S1 noted that
Complainant’s attendance in the past year has been abysmal despite
S1’s attempts to help her improve. Id. at 7. The Commission notes
that the record reveals that Complainant was granted overtime during the
period at issue. ROI, Exh. 5. To the extent that Complainant alleges
that other employees were granted more overtime opportunities, S1 added
that the identified employees work on different tours and she did not
schedule their overtime. Id. at 3-5. Several management officials all
confirmed that Complainant was either not on the same tour or was in a
different occupational group than the identified comparators and would
not have been considered for the same overtime opportunities. The Plant
Manager added that the Agency has reduced overtime opportunities across
all crafts due to a decline in mail volume. ROI, Aff. I, at 3.
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'y 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
Complainant has not shown that any of the Agency’s actions were based on
discriminatory animus or that the reasons articulated by the Agency for
its actions were mere pretext to hide unlawful reprisal discrimination.
Complainant’s arguments on appeal are insufficient to create a dispute
of material fact. Accordingly, the Commission finds no reason to disturb
the AJ’s issuance of a decision without a hearing.
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
April 27, 2011
Date
2
012009-3064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093064