Denise Manzo, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 24, 2007
0120070850 (E.E.O.C. May. 24, 2007)

0120070850

05-24-2007

Denise Manzo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Denise Manzo,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070850

Hearing No. 550-06-00108X

Agency No. 4F945023605

DECISION

On November 27, 2006, complainant filed an appeal from the agency's

November 2, 2006, 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 appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final order.

ISSUES PRESENTED

Whether complainant was discriminated against on the basis of reprisal

(prior EEO activity) when: (1) she was issued a Letter of Warning on July

25, 2005; (2) she was issued a seven (7) day suspension on August 1, 2005;

(3) a similarly situated employee created a hostile work environment

for her by yelling at her across stations on the front counter, rudely

interrupting her conversation with a Postal Customer on July 25, 2005;

(4) another employee reported that she was away from her work station for

approximately one hour on July 30, 2005, which resulted in her supervisor

conducting a "Just Cause" interview threatening her with discipline on

August 1, 2005; (5) her supervisor tried to cut her scheduled one hour

lunch to a half hour lunch on September 12 and 13, 2005; and (6) she

was returning from her afternoon break her supervisor was waiting for

her and accused her of taking a 25 minute break on September 26, 2005.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Window Clerk at the agency's Hayward facility in California.

On July 25, 2005, complainant was issued a Letter of Warning for conduct

unbecoming of a Postal Employee/Creating a Hostile Work Environment,

when she was uncooperative when she attempted to count money. The

letter stated that complainant had created a hostile work environment

on July 9 and 16, 2005, by speaking to a coworker in a sarcastic,

taunting manner, as if she were talking to a "kindergartener." Also,

on July 25, complainant and a co-worker were involved in a dispute.

Complainant maintained that a female customer that was standing in her

line complained about the excessive wait time and asked to speak to a

supervisor. While complainant was explaining that a supervisor was not

available, a co-worker yelled across her work station to the customer.

Complainant indicated that she told the co-worker that she was helping the

customer. There is a dispute, however, as to what was actually said.

On August 1, 2005, complainant was called into her supervisor's office to

discuss complaints from three co-workers that she had taken an extended

lunch. Complainant maintained that she had actually been replacing

her money order machine at the time and then went directly to lunch.

Complainant was presented with a Just Cause questionnaire. After an

investigation, it was determined that discipline was not warranted.

On September 12 and 13, 2005, complainant's supervisor asked her to

shorten her lunch hour in order to cover the understaffed window unit

because a co-worker was on unscheduled leave. Complainant stated that she

refused and was threatened with discipline. Complainant maintained that

management can not force an employee to work overtime within the regular

eight hour work day. Finally, on September 26, 2005, complainant's

supervisor accused her of taking a twenty-five minute break but after an

investigation it was determined that complainant had only taken a fifteen

minute break. Complainant maintained that reprisal was a factor in this

case because her supervisor did not closely observe, question or accuse

anyone else about their break or lunch times. On November 7, 2005,

complainant filed an EEO complaint alleging that she was discriminated

against on the basis of reprisal.

At the conclusion of the investigation, complainant was provided 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 the complainant's objections, the AJ

assigned to the case granted the agency's June 30, 2006 motion for a

decision without a hearing and issued a decision on September 29, 2006.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

The AJ found that complainant failed to establish a prima facie case

of reprisal because there was an insufficient nexus between her prior

EEO activity and the instant case. Specifically, the AJ found that

complainant was issued disciplinary measures in July and August 2005,

because she was involved in a series of incidents in July 2005 involving

her contentious conduct with co-workers including rude and abrasive

behavior witnessed by agency customers. Complainant also had a record

of previous misconduct, including her receipt of a Letter of Warning

in June 2005, for unacceptable work performance. The AJ found that

an investigation was conducted regarding the incidents in question

and corroborating statements were received. The AJ also noted that

complainant's supervisor was unaware of her prior EEO activity.

The AJ determined that there was no evidence in the file that indicated

that similarly situated individuals not of complainant's protected

group were treated more favorably. Notwithstanding, the AJ stated

that even if complainant were able to show a nexus, the agency had

articulated legitimate nondiscriminatory reasons for its action, namely,

that complainant was disciplined because she had engaged in disruptive

conduct. The AJ found that complainant failed to show that the agency's

articulated reason was pretext for discrimination.

With respect to complainant's allegations of harassment the AJ found

that the incidents complained of did not rise to the level of a hostile

work environment. He indicated that even if the incidents were considered

cumulatively, complainant failed to show that her interpersonal exchanges

with her co-workers and supervisors were frequent or permeated the work

environment. The AJ found that incidents were not sufficiently severe

or pervasive to establish harassment.

CONTENTIONS ON APPEAL

On appeal, complainant contends that she was unfairly disciplined.

ANALYSIS AND FINDINGS

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 EEOC Management Directive 110, Chapter 9,

� VI.B. (November 9, 1999). (providing that an administrative judge's

"decision to issue a decision without a hearing pursuant to [29 C.F.R. �

1614.109(g)] will be reviewed de novo"). 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 Chapter 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").

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 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. Department of Defense, 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). Based on

a review of the file, 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 such that a hearing on the merits is warranted. Specifically, the

Commission finds that the AJ made certain that: the investigative record

was adequately developed; there were no genuine issues of material fact;

and there were no findings of fact made by weighing conflicting evidence

or assessing witness credibility.

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, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 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. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

The Commission finds that assuming arguendo that complainant established

a prima facie case of reprisal, the agency articulated a legitimate

nondiscriminatory reason for its action. Essentially, we find that

the agency engaged in cumulative discipline. The record shows that

complainant had been previously disciplined for work related issues.

Those incidents and the incidents at hand led to the Letter of Warning

and the suspension. We do not find any evidence that complainant's

prior EEO activity was involved with issuing the Letter of Warning and

the suspension. In fact, the issuing supervisor maintains that she was

unaware of her prior EEO activity.

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

[and 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 v. Forklift Systems, 510 U.S. 17

(1993).

Complainant alleges that she was subjected to a hostile work environment

and harassment. To establish a prima facie case of hostile environment

harassment, a complainant must show that: (1) s/he is a member of a

statutorily protected class; (2) s/he 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 the statutorily

protected class; and (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. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

We find that complainant failed to establish that she was subjected to

harassment in retaliation for engaging in prior EEO activity. For the

most part, complainant presented isolated incidents, e.g., a co-worker

yelling and interrupting a conversation and employees reporting that she

was away from her work station for an hour, that are not sufficiently

severe or pervasive enough to establish a claim of harassment. Likewise,

with respect to complainant's contentions that her supervisor monitored

her lunch and break times, we find no persuasive evidence that these

actions were taken because of complainant's prior EEO activity.

CONCLUSION

Based on a thorough review of the record and the contentions on

appeal, including those not specifically addressed herein, we find that

complainant has failed to show that she was discriminated against based

on reprisal.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

_______5/24/07___________

Date

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0120070850

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070850