0120161177
12-20-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Desire M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161177
Hearing No. 430-2015-00037X
Agency No. 1K291002414
DECISION
On February 24, 2106, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 28, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether Complainant was discriminated against based on sex (female) and disability (foot injury) when:
1. Since March 10, 2014 and ongoing, she was worked outside of her work restrictions;
2. On or around March 21, 2014, she was coerced into withdrawing her application for the position of Operations Support Specialist; and
3. On or around April 24, 2014, she was not selected for the position of Operation Support Specialist.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Distribution Operations (SDO) at the Agency's Greenville Facility in Greenville, South Carolina. In 2002, Complainant was injured on the job while working as a SDO. As a result, she developed plantar fasciitis and was limited to standing and walking for 30 minutes per day. As such, Complainant was assigned a modified job offer in November 2009, which was her assignment at the time of the complaint. In her modified assignment, Complainant reported to M-1 and worked in In-Plant support on Tuesday, Thursdays, Fridays and Saturdays, and performed supervisory duties on Saturdays.
Regarding claim 1, on or March 2014, Complainant advised M-1 and M-2, Manager of Implant Support (MIPS), that she was being worked outside of her restrictions. Complainant contends that she was worked outside of her restrictions from January 2012 through June 27, 2014. Complainant admitted that after she advised management of this issue, that M-2 offered assistance by having other employees aid with any duties that may violate her restrictions. Complainant also indicated that M-2 told her that she should not perform mail count and/or data collection because it would require her to walk the entire workroom floor. Shortly thereafter, in or about June 2014, Complainant was issued a motorized scooter, which eliminated the need for her to be on feet. There is no record of any further complaints or issues surrounding this aspect of Complainant's work history with this Agency.
In February 2014, twelve years after she injured her foot, a position for an Operation Support Specialist was posted. The position was listed as work for night hours (11 pm - 8 am) Monday - Friday. In March 2014, one month after the posting, Complainant applied for the position. A male, A-1, also applied. During Complainant's interview, she advised M-2 that she was "not interested in working night hours." The record indicates that it was made clear to Complainant that the position was only for night hours, and that if she did not wish to work night hours, she should withdraw her application. Complainant withdrew her application, and A-1 was selected for the position.
Subsequently, Complainant maintained that she had been "coerced" into withdrawing her application. In the record, Complainant acknowledged that she withdrew her application because of the night hours. Other than noting that M-2 indicated that if she was not interested in night hours she should withdraw her application, Complainant did not specifically state how she was coerced.
In claim 3, Complainant alleged that she was bypassed for the Operations Support Specialist (OSS) position. Complainant indicated that she applied and was interviewed by M-2 for this position, but was not selected. M-2 admitted that she advised Complainant that the advertised night shift hours were not negotiable and that if she did not want to work the posted hours that she should withdraw her application. Because Complainant heeded M-2's advice, and withdrew her application, Complainant was not selected.
The record also indicates that in March 2014, another OSS position was posted, but with day hours (8am - 5pm), and Saturdays and Sundays off. Complainant applied for the position. A-2, from Baltimore, Maryland requested a lateral transfer into the position. M-2, the selecting official, determined that A-2 was the best qualified applicant and granted him the lateral reassignment.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on January 12, 2016. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant raises no contentions on appeal.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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. 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. 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).
Upon review of the record, we find that there are no genuine issues of material fact presented here. The record has been adequately developed, and all procedural perquisites for a hearing before an EEOC Administrative Judge were met. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
We also find no persuasive evidence that discriminatory animus played any role in this case. With regard to claim 1, the record indicates that once Complainant informed M-1 and M-2 of her concerns, they took actions to correct the situation and to make sure that she was no longer worked outside of her restrictions. Complainant, in an effort to show pretext, maintained that she was made to work outside of her restrictions as a result of her sex because M-1 talked to women differently. She claimed that she has been addressed in a less civil tone than men. Even if we assume that Complainant established a prima facie case of discrimination based on sex and disability, she presented no persuasive evidence of pretext with regard to the Agency's legitimate, nondiscriminatory explanations for its actions.
As for claims 2 and 3, the record clearly indicates that Complainant withdrew her application from consideration because she was told that night hours were involved. We find no persuasive evidence that she was coerced in any way into withdrawing her application from consideration. Finally, the record indicates that she was not selected because her application had been withdrawn and she was not considered for the position. Subsequently, she applied for another OSS position with daytime hours, but was not selected because M-2 found A-2 to be more qualified and he was laterally reassigned into the slot. Complainant did not establish pretext with regard to either selection. In this regard, we find no persuasive evidence that Complainant was more qualified for the day time OSS position than A-2.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__12/20/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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