0120132970
09-25-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120132970
Hearing No. 460-2012-00085X
Agency No. 4G-770-0049-11
DECISION
Complainant filed an appeal from the Agency's July 3, 2013 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. The Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Fairbanks Station in Houston, Texas.
On February 25, 2011, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when:
1. From October 2, 2010, and continuing, management identified Complainant as one of the "vital few" and subjected her to harsher scrutiny and harassment.
2. On unspecified dates, Complainant was questioned about putting up her purse and getting her glasses.
3. On unspecified dates, Complainant was not allowed to leave her case, including going to the bathroom without permission.
4. On unspecified dates, Complainant was not allowed to talk with her co-workers and was required to face her case.
5. On several unspecified dates, Complainant was called into her supervisor's office and told by him that he would be monitoring her.
6. On an unspecified date, Complainant's supervisor replaced her assigned vehicle with an older vehicle equipped with a GPS tracker, which Complainant alleges was also done in retaliation for her prior EEO activity.
7. On December 5, 2011, she was issued a Letter of Warning (LOW).
The Agency initially dismissed the claims for failure to state a claim. The Commission reversed the dismissal and remanded the matter for investigation. Bevylen Matthews v. United States Postal Service, EEOC Appeal 0120112582 (November 23, 2011). In that decision, we found that the series of alleged incidents stated a cognizable Title VII claim as an allegation of a pattern of actionable harassment.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file. She requested a hearing before an EEOC Administrative Judge (AJ). On August 24, 2012, the Agency filed a motion for summary judgment. On June 20, 2013, the AJ issued a decision by summary judgment in favor of the Agency.
In reaching her decision, the AJ found the following facts from the evidence gathered during the investigation.
Complainant had a number of first level supervisors, most of whom were African American. The upper level managers in her chain of command were also African American.
The post office was facing budgetary restrictions and management has been tasked with limiting overtime usage wherever possible.
It is undisputed that Complainant was referred to by management as one of the "vital few."1 The term was used for carriers who used unauthorized overtime and whose performance was not meeting standards. Complainant continuously exceeded the time allotted for her routes, resulting in almost daily use of unauthorized overtime.
As a result, Complainant was called into Supervisor S's (African American male) office and told that the District Manager (African American male) had instructed him to monitor her to improve her performance, including route counts and street observations.
Management also asserted that Complainant had a history of leaving her work station and talking to coworkers. She was told by management that this was impeding her performance, including leading to overtime usage.
Employees were required to secure their personal belongings prior to clocking in. On one occasion, Complainant was instructed to put up her personal belongings before she clocked in.
The Fairbanks Station received five LLV vehicles with GPS trackers installed. Complainant was one of the carriers who received an LLV with a GPS tracker.
Complainant identified several female Caucasian carriers who were not monitored every day, were allowed to converse with co-workers, not given street observations and not required to use vehicles with GPS trackers.
On December 5, 2011, Supervisor B (African American female) issued Complainant a letter of warning for failing to make required MCP scans on her November 30, 2011 route.2 Complainant had been previously trained and instructed on making the scans. Complainant filed a grievance, which was settled with an agreement to remove the letter of warning.
Based on these facts, the AJ found that "the record is undisputed that [Complainant] is a member of several Title VII protected classes and had been identified as one of the 'vital few' due to her performance problems and almost daily use of unauthorized overtime." The AJ concluded that, "as a result, she was not allowed to leave her case without permission, was instructed not to talk to her co-workers unless in her immediate area; was instructed to put up her personal belongings before clocking in; was called into the office by the supervisor and told that she would be monitored; was subjected to a number of route counts and street observations and given a vehicle with a GPS tracker installed." The AJ reasoned, however, that Complainant failed to establish that the alleged harassment was sufficiently severe or pervasive to have affected a term or condition of her employment and/or created an intimidating, hostile, or offensive work environment." The AJ reasoned that, rather than because of her race or gender, "the evidence reveals that her performance or lack thereof was the real culprit."
The AJ also found that Complainant failed to identify a City Carrier outside of her Title VII protected classes who failed to scan at assigned scan points on their route and was not issued discipline. The AJ noted a Caucasian male was also issued a Letter of Warning for Unsatisfactory Work Performance on the same day that the supervisor issued a Letter of Warning to Complainant.
The Agency's final action implemented the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
Upon review of the record, we find that Complainant has failed to establish that the AJ erred in deciding the instant complaint by summary judgment. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing 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). We find that the record here was adequately developed and that Complainant failed to identify any material facts in dispute which required a hearing to resolve.
We also find no evidence to support Complainant's claim that the AJ erred in concluding that no discrimination had been proven in this case. There is ample evidence that the actions taken by management to monitor Complainant's work more closely and warn her against leaving her work station resulted from a concern about her work performance and her repeated use of unauthorized overtime. The record also establishes that the supervisors had been ordered to reduce overtime for financial reasons during this period. While Complainant points to a number of Caucasian carriers who she states were not subjected to the same scrutiny and monitoring, there is no evidence to suggest that these employees had the same performance problems as Complainant. In fact, with regard to the letter of warning, it is undisputed that the same supervisor issued the same letter of warning to a Caucasian employee on the same day for also missing MCP scans. Complainant has simply not provided any evidence that her race or gender was a factor in the events at issue.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, we AFFIRM the Agency's final action which adopted the AJ's finding that no discrimination had been proven.
.
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 tends 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
September 25, 2014
__________________
Date
1 It appears that four other employees were also referred to as the "vital few" at the Fairbanks Station. The record does not show the race or gender of those who were labeled, but Complainant averred that all were African-American and three of the five were African-American women.
2 On that same day, the supervisor issued a Letter of Warning to a white male for the same infraction.
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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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