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
2
0120070850
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120070850