0120113208
09-06-2012
Dana L. Suttles, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Dana L. Suttles,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120113208
Hearing No. 480-2010-00057X
Agency No. 1F-904-0059-09
DECISION
On June 16, 2011, Complainant filed an appeal from the Agency's May 16, 2011, 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 the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against her on the bases of race (African American), sex (female), and reprisal (prior EEO activity), and (2) whether the AJ properly found that Complainant had not proven that she had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Los Angeles Network Distribution Center in Bell, California. Report of Investigation (ROI) Exhibit (Ex.) 1.
In a formal EEO complaint dated June 26, 2009, Complainant alleged that the Agency discriminated against her on the basis of reprisal when it charged her with absence without leave (AWOL) on March 18-19, 2009, removed her from the building, and disapproved her medical documentation on May 29, 2009. She subsequently raised other allegations and, by letter dated July 27, 2009, the Agency agreed to investigate whether Complainant was subjected to harassment and discrimination based on race, sex, and retaliation when:
1. on March 18 and 19, 2009, Complainant was charged AWOL;
2. on April 15, 2009, Complainant was taken out of the building;
3. on April 16, 2009, Complainant was threatened;
4. on May 29, 2009, Complainant was denied 4 hours of leave and she was sent to another unit;
5. on June 5, 2009, Complainant was given a Day in Court; and
6. on June 24, 2009, Complainant was issued a Notice of Removal.
The record reveals that Complainant engaged in prior EEO activity in 2004, 2005, 2006, 2007, 2008, and 2009. ROI Ex. 2. In response to the EEO Investigator's question, "For what specific prior EEO activity do you allege retaliation," Complainant replied, "IF-904-0086-07." Id. Affidavit (Aff.) A at 2. The record indicates that Complainant filed the prior formal complaint on December 28, 2007, and that she and the Agency entered into an EEO settlement agreement for that complaint on March 20, 2009. Id. Ex. 2 at 2, 8. The record does not contain a copy of the settlement agreement.1 Complainant's supervisor and the Agency's Senior Manager of Distribution Operations (SMDO) were aware of Complainant's prior EEO complaint. Id. Affs. B at 2, C at 2.
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. On November 12, 2010, the Agency filed a motion for a decision without a hearing. Complainant filed an opposition to the motion on November 29, 2010. She argued that the Agency's actions were in retaliation for protected EEO activity and noted that the Agency issued the Notice of Removal three months after she and the Agency had entered into an EEO settlement agreement. The AJ granted the Agency's motion and issued a decision without a hearing in favor of the Agency on May 5, 2011.
In her decision, the AJ found that Complainant had a documented history of attendance problems and was issued a February 8, 2008, Notice of Removal for attendance violations. Complainant filed a grievance challenging the Notice, and she and the Agency settled the grievance on October 20, 2008. Pursuant to the settlement, Complainant agreed to comply with attendance rules, including the requirement that employees submit medical or other acceptable evidence of inability to work during unscheduled absences.
The AJ also found that Complainant did not report for work on March 18, 2009. Complainant stated that she called in and received a confirmation number, but the Agency stated that the number was not valid. The Agency charged Complainant with being AWOL. In addition, the AJ noted that, on April 16, 2009, there was a dispute about a modified work assignment within Complainant's medical restrictions. Complainant interpreted a remark by the Manager of Distribution Operations (MDO) as a threat of removal, but the MDO asserted that he said Complainant could accept the new assignment or leave the facility.2
The AJ further found that Complainant did not report for work as scheduled on May 29, 2009, called to request leave, and reported to work later in the day. When her supervisor assigned her to work in a different unit, Complainant replied that the supervisor could not take away her bid job and send her somewhere else because she was late. Complainant subsequently submitted two notes confirming that she had been visiting her mother at a care center on May 29, 2009. During a June 5, 2009, investigative interview with her supervisor, Complainant could not explain why she had not scheduled leave for the morning of May 29.
The Agency issued a Notice of Removal on June 19 and a corrected Notice of Removal on June 24, 2009. The AJ noted that the Agency subsequently removed Complainant and that an arbitrator's decision reversed the removal. According to the AJ, the arbitrator concluded that the Agency treated the October 2008 settlement as a last chance agreement and issued the Notice of Removal without procedural and substantive protections. The AJ noted that, when a complaint is filed on a proposed action and the agency subsequently proceeds with the action, the action is considered to have merged with the proposal. Accordingly, the AJ found that Complainant's removal was properly before her.
The AJ concluded that Complainant had not presented evidence that a similarly-situated employee of a different race or sex or without prior EEO activity was treated more favorably than Complainant. Therefore, the AJ found that there was no evidence to create a dispute of fact regarding a discriminatory motive based on race, sex, or reprisal. With respect to Complainant's reprisal claim, the AJ stated that Complainant based the claim on the October 2008 grievance settlement. Noting that the agreement made no reference to discrimination, retaliation, or EEO matters, the AJ found that the settlement agreement did not constitute protected activity under Title VII.
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. Complainant then filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she established a prima facie case of reprisal. In that regard, she states that she engaged in prior EEO activity when she received $18,000 through the March 20, 2009, settlement agreement, that the Agency was aware of her prior EEO activity, that the Agency subjected her to adverse treatment, that she "submitted [the] name of employee[s] treated differently," and that the Agency removed her three months after the settlement agreement. Complainant argues that she established a nexus between her protected activity and her removal. Complainant also argues that the June 5, 2009, investigative interview constituted harassment.
The Agency raises no arguments on appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker" and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Decision without a Hearing
We 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 United States 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 Corp. 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, n.5. In the hearing context, this means that the Administrative Judge must enable the parties to engage in the amount of discovery necessary to respond properly 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).
In this case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given an opportunity to respond to the motion, and she had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail on a disparate treatment claim, 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 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
In this case, we note that the AJ concluded that Complainant based her reprisal claim on the October 2008 grievance settlement and that the settlement did not involve protected activity. A review of the record, however, reveals that Complainant has alleged that the Agency took the actions at issue in reprisal for the March 20, 2009, settlement of her prior EEO complaint. The March 2009 settlement constitutes protected EEO activity, Agency officials were aware of the prior activity, Complainant was subjected to adverse treatment when the Agency charged her with being AWOL and removed her, and the temporal proximity between Complainant's prior EEO activity and the actions at issue here is sufficient to raise an inference of retaliatory motivation. Accordingly, we find that Complainant has established a prima facie case of reprisal discrimination. We assume for purposes of analysis, without so finding, that Complainant also has established prima facie cases of race and sex discrimination.
We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Complainant was charged with AWOL for absences on March 18 and 19, 2009, because she did not have a valid confirmation number and did not submit documentation to substantiate her leave request. On April 15, 2009, Complainant submitted new medical documentation, and the Agency could not permit her to work unless she stated that she could work within her new restrictions. Following an April 16, 2009, dispute about a modified work assignment for Complainant, the MDO told Complainant she could accept a new assignment or leave the facility. Complainant's supervisor conducted the June 5, 2009, investigative interview to give Complainant an opportunity to explain her absences, and the Agency issued the Notice of Removal because of Complainant's attendance deficiencies.
Complainant has not shown the Agency's articulated reasons to be pretexts for discrimination. Although she asserts that the Agency treated her less favorably than a Hispanic male whose AWOL charge was removed, the record establishes that the employee was not similarly situated to Complainant. Whereas the Agency removed the employee's charge after he substantiated his attempt to call into his duty station, Complainant did not submit valid confirmation that she had called the Agency on March 19, 2009. Complainant has produced no evidence of other employees who had attendance deficiencies similar to Complainant's but were treated more favorably. Similarly, she has produced no evidence that discriminatory or retaliatory animus motivated the Agency's actions. Her bare assertions that the Agency engaged in reprisal do not establish that the Agency's articulated reasons for its actions were pretextual.
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII or the Rehabilitation Act must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris , 510 U.S.at 23.
To establish a claim of harassment based on sex, disability, or reprisal, Complainant must show that: (1) she is a member of the statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris, 510 U.S. at 21. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of her race, sex, or prior EEO activity. Accordingly, we find that Complainant has not demonstrated that the Agency discriminated against her on the basis of race, sex, or reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision without a hearing.
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
September 6, 2012
Date
1 By letter dated August 6, 2009, Complainant claimed that the Agency had breached the March 2009 settlement agreement when it issued the June 2009 Notice of Removal. In a Letter of Determination dated October 14, 2009, the Agency concluded that it had not breached the agreement. Complainant appealed to this Commission, which affirmed the Agency's determination. See Suttles v. U.S. Postal Serv., EEOC Appeal No. 0120093826 (Mar. 19, 2010).
2 The Agency also charged Complainant with being AWOL on March 19, 2009. ROI Ex. 3. Complainant alleged that the SMDO removed the AWOL designation of a Hispanic male employee, whom she did not identify, who was charged with AWOL. Id. Aff. A at 26. The SMDO told the EEO Investigator that a Hispanic male employee's AWOL charge was removed during a Step 2 grievance procedure after the employee substantiated his attempt to call into his duty station on the day in question. Id. Aff. C at 6. Complainant also alleged that the SMDO and the MDO removed her from the building on April 15, 2009, and that the reason they gave her for the action was "[t]o take care of paperwork." See id. Aff A at 7-8. The SMDO told the Investigator that she was not involved with Complainant leaving the building. Id. Aff. C at 3. The MDO told the Investigator that Complainant had been asked to report for a National Reassessment Process (NRP) to evaluate her limited-duty status and to update her medical documentation, but he did not know why Complainant was ordered out of the building. Id. Aff. D at 3. Complainant's supervisor told the EEO Investigator that Complainant submitted updated medical documentation on April 15; that Complainant would remain under NRP guidelines until there was a new job assignment; and that the Agency could not allow Complainant to work unless she stated that she could work within her new medical restrictions. Id. Aff. B at 3.
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0120113208
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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