0120101791
08-11-2010
Claudia V. Fajardo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Claudia V. Fajardo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120101791
Hearing No. 540200900071X
Agency No. 4E840003408
DECISION
On March 19, 2010, Complainant filed an appeal from the Agency's January 19, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
1. Whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and
2. Whether the AJ properly found that Complainant was not subjected to discrimination based on her race, sex, or disability.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a Distribution/Mail Processing Clerk at the Agency's Provo, Utah facility. Complainant was hired on March 29, 2008, and was subject to a 90-day probationary period. Investigative File (IF): Ex. 1, at 103. On May 12, 2008, Complainant was diagnosed with kidney stones. IF: Aff. A, at 68. On May 14, she requested FMLA leave from May 12 through May 18. Id. On May 19, Complainant presented medical documentation with lifting restrictions. Id. Upon management's receipt of the documentation, Complainant was assigned to manual mail distribution for the remainder of the week, which was within her limitations. Id. at 67. Complainant received a probationary period evaluation on May 27, 2008. Her first level supervisor (S1) evaluated her performance as "unacceptable" on work quantity, work quality and dependability. IF: Ex. 7, p. 110. In her second evaluation, Complainant was again evaluated as unacceptable on work quantity, work quality, and dependability. On her 80-day evaluation, the third evaluation of her probationary period, also completed by S1, Complainant was evaluated as "unacceptable" on five of the six categories: work quantity, work quality, dependability, work methods, and personal conduct. Id. Subsequent to this evaluation, management made the decision to terminate Complainant's employment. IF: Aff. B, p. 89
On August 25, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic), sex (female), and disability (Kidney stones) when: she was terminated during her probationary period on June 18, 2008.
At the conclusion of the investigation, the Agency provided Complainant 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's June 29, 2009, motion for a decision without a hearing and issued a decision without a hearing on December 28, 2009. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
AJ's DECISION
The AJ initially determined that this matter should be resolved without a hearing, because there was no genuine dispute of material fact or questions of credibility. The AJ next found that Complainant failed to establish prima facie cases of race or sex discrimination. The AJ noted that Complainant presented no evidence supporting her claim that her race or sex played a role in the decision to terminate her employment. The AJ also noted that Complainant's comparators were not similarly situated as they, respectively, had received higher performance evaluations and performed different work. Next, the AJ found that Complainant failed to establish a prima facie case of disability discrimination. Next, the AJ found that assuming arguendo Complainant had established prima facie cases of sex, race, or disability discrimination; the Agency had provided legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ noted that Complainant demonstrated unsatisfactory performance during her probationary period as evidenced by sweeping errors, misthrows and a labeling error which caused mail to be misdirected. The AJ determined that Complainant failed to offer any evidence to show that the Agency's explanation for its actions was a pretext for discrimination. On these grounds, the AJ concluded that the Complainant failed demonstrate that she was discriminated against because of her race, sex, or disability when her employment was terminated.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly decided her case on summary judgment. Complainant also submits approximately 200 pages of documents in support of her claims.
On appeal, the Agency contends that Complainant's appeal is untimely and should be dismissed. The Agency also avers that Complainant introduces new arguments and issues on appeal that pertain to matters occurring subsequent to the filing of her complaint and not previously provided to the Administrative Judge or the Agency counsel. On these grounds, the Agency avers that this information should be stricken from the record. Next, the Agency avers that the AJ properly granted summary judgment; as there are no material facts in dispute that warrant a hearing. The Agency also argues that management provided legitimate, nondiscriminatory reasons for its actions, and Complainant failed to show that these reasons were a pretext for unlawful employment discrimination. On these grounds, the Agency requests that the Commission affirm its final order finding no discrimination.
ANALYSIS AND FINDINGS
Initially, we address the Agency's contention that Complainant's appeal is untimely. The Agency stated that Complainant received its final order on January 22, 2010, as confirmed by its computerized tracking system, and therefore Complainant's March 19, 2010 appeal is untimely. The record contains a United States Postal Service "Track & Confirm" print-out, which indicates that a delivery took place to zip code destination "84663," without any further detail of the address. We find that there is no persuasive evidence indicating that Complainant received the final order on January 22, 2010. Where, as here, there is an issue of timeliness, "[a]n Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeless." See Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Therefore, in the absence of specific evidence indicating that Complainant received the final order on January 22, at her home, we find that his appeal was timely filed.
Next, we note that as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. EEO Management Directive for 29 C.F.R. Part 1614, Ch. 9 � VI. A. 3. (1999) (MD-110). In this case, Complainant seeks to introduce evidence into the record for the first time. On appeal, Complainant provides no justification for introducing new evidence and arguments, and she fails to provide a reason as to why it was not possible to introduce this evidence at an earlier time. Consequently, we decline to consider the newly presented evidence.
Now we must 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 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). A fact is "material" if it has the potential to affect the outcome of the case. Kronenberg v. U.S. Postal Serv., EEOC Appeal No. 0120073116 (March 19, 2010).
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 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 Commission finds that the AJ appropriately issued a decision without a hearing, as Complainant failed to proffer sufficient evidence to establish that a genuine issue of material fact exists or that there are credibility issues such that a hearing on the merits is warranted.
Disparate Treatment - Sex, Race, and Disability
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). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that Complainant established prima facie cases of discrimination based on sex, age, and disability,1 we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. Specifically, the record reflects that Complainant received unsatisfactory performance evaluations. In her first evaluation during her probationary period, Complainant was evaluated as unacceptable in three categories: work quantity, work quality, and dependability. IF, Exhibit 7, p. 110. S1 testified that he informed Complainant that she needed to talk to co-workers less and concentrate on work more. Id. During her second evaluation of her probationary period, conducted by S1 on or about May 27, 2008, Complainant was again evaluated as unacceptable on work quantity, work quality, and dependability. Id. On her 80-day evaluation, the third of the probationary period, also conducted by S1, Complainant was rated as unacceptable on five of the six categories of evaluation: work quantity, work quality, dependability, work methods, and personal conduct. Id. Indeed, the record reflects that Complainant's work performance was marred by serious deficiencies. S1 testified that despite explaining in detail to Complainant how she was to perform a given task, she would continue to make the same errors. Id. S1 testified that Complainant also made significant sweeping errors and miss-threw mail. Id. In this regard, S1 testified that Complainant mislabeled a whole machine, and mail that was supposed to go to Las Vegas was directed elsewhere by her labeling error. IF, Affidavit B, p. 89.
In response, Complainant has provided no argument or evidence indicating that the Agency's reasons are a pretext for unlawful employment discrimination. We note that, in addressing the AJ's issuance of a decision without a hearing, Complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. Accordingly, on these grounds, we find that Complainant failed to show that she was subject to discrimination as alleged.
CONCLUSION
Based on a careful review of the record, the Commission concurs with the AJ's finding that Complainant failed to proffer evidence establishing that the Agency's articulated reasons for its actions were more likely than not a pretext for discrimination. Accordingly, we AFFIRM the Agency's final order adopting the AJ's determination that Complainant was not subjected to unlawful discrimination as alleged.
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
______8/11/10____________
Date
1 For purposes of this decision, the Commission also assumes without finding that Complainant is an individual with a disability.
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0120101791
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101791