0120130422
03-27-2013
Deborah A. Scott, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Deborah A. Scott,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120130422
Hearing No. 490-2012-00084X
Agency No. 4C-370-0026-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 21, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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
During the period at issue, Complainant worked as a City Carrier at the Agency's Murray Lake Hill Station in Chattanooga, Tennessee.
On September 9, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American), color (black), and in reprisal for prior EEO activity when:
1. on May 25, 2011, she was issued a Letter of Warning (LOW) for violation of service standard of conduct Unsatisfactory Performance Driving Practices; and
2. on October 4, 2011, she was issued a LOW.1
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On August 29, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In her decision, the AJ found no discrimination. Without address the prima facie case analysis, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The AJ noted that in regard to claim 1, the Supervisor, Customer Services (supervisor) stated that he issued Complainant a LOW dated May 25, 2011 for Unsatisfactory Performance - Driving Practices. Specifically, the supervisor stated that on April 29, 2011 Complainant was witnessed by the Safety Specialist "talking on [a] cell phone while driving her assigned Postal Vehicle. Complainant also failed to stop at a stop sign according to Safety Specialist." The supervisor stated that Complainant's race, color, and prior protected activity were not factors in his determination to issue her the LOW.
The Manager Customer Services (Manager) was the concurring official concerning the May 25, 2011 LOW. The Manager stated that he and the supervisor "received a report of driving observations conducted by the Safety Specialist "whereby he stated in his 4584 that serious violations of prescribed safety regulations. [Supervisor] conducted an Investigation and subsequently determined that a Letter of Warning was appropriate to address the issue. After review of his request, I concurred."
Regarding claim 2, the supervisor stated that he issued Complainant a LOW dated October 4, 2011 for failure to discharge her duties efficiently on September 7, 2011. The supervisor stated "as a background, the Complainant consistently extends her street time, creating unnecessary overtime. While other carriers make requests for assistance/overtime, the other carriers' requests are not to the same extent as the Complainant's requests (i.e. does not result in penalty overtime without extenuating circumstances to justify it)."
Further, the supervisor stated that on September 7, 2011, Complainant requested 21/2 hours of overtime "which would have resulted in penalty overtime. One hour over overtime was approved on this date. I rode with the Complainant to observe the Complainant's work practices (as I do with all carriers, not only the Complainant) and the Complainant returned to the office under the amount of time she had originally requested. The Letter of Warning was issued to the Complainant to hold her accountable for her duties as a carrier and stress the importance of more accurately determining how much time would be needed to complete her assignment."
The Manager stated that he concurred with the October 4, 2011 because Complainant "violated the Postal Standards of Conduct in ELM and failed to discharge her duties efficiently." The Manager further stated "we have been working with all these carriers and encouraging them to complete the necessary forms (3996) and accurately estimate their need for assistance. While reminders and discussions have resolved the issues with the above employees, the issues were not resolved with the Complainant; therefore, the Letter of Warning issued to Complainant was warranted."
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. We determine that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, color or prior protected activity. We discern no basis to disturb the AJ's decision.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.2
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
March 27, 2013
__________________
Date
1 The record reflects that claim 2 was later amended to the instant formal complaint. The record further reflects that as a result of the two grievances Complainant filed, the May 25, 2011 LOW was removed from Complainant's file and the October 4, 2011 LOW was reduced to an official discussion.
2 On appeal, Complainant does not challenge the October 4, 2011 partial dismissal issued by the Agency regarding two other amended claims (that she was discriminated against on the bases of race and retaliation when on August 22, 2011 and other unspecified dates, she has been harassed in the form of continuous and unnecessary street observations and 3999 rides; and on an unspecified date, she received an initial interview for extending her street time on September 7, 2011, at which time she alleged management defamed her character). Therefore, we have not addressed these issues in our decision
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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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