0120093446
01-08-2010
Diana Mendez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Diana Mendez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093446
Hearing No. 480-2008-00430X
Agency No. 1F-927-0039-07
DECISION
On August 14, 2009, complainant filed an appeal from the agency's July 17, 2009 final order 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. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant had been employed by the agency for almost twenty years and was working as a Mail Processing Clerk at the Processing & Distribution Center (PDC) in Santa Ana, California.
On July 24, 2007, complainant accused her coworker of intentional assault when the co-worker's elbow hit complainant's arm as the two women passed each other near the cafeteria. There were no witnesses to the event and after investigation, management concluded that there was not enough evidence to prove that the contact was anything more than an accident. The co-worker promised to avoid complainant in the future.
A few months later, agency management transferred the processing of Priority Mail from the PDC in Santa Ana to the PDC in Anaheim. Consequently, and based on seniority, twelve of the twenty-eight employees who worked in the Priority and Express Mail Section had their bid assignments abolished. Complainant was one of the twelve employees. Complainant, along with the others, was allowed to bid on an assignment in the Automation Section that closely mirrored her current schedule.
Complainant believed that the procedure used for abolishing the bid assignments and reassigning the employees to the Automation Section was inconsistent with the collective bargaining agreement. As a result, complainant refused to bid on a position in the Automation Section. Instead, complainant attempted to keep working in what became the Express Mail Section under her former schedule with Thursdays and Fridays off. However, her refusal to bid on a position resulted in her being assigned by default to a position in the Automation Section with Sundays and Mondays off.
In November 2007, management ordered complainant to work in the Automation Section or to go home. Complainant chose to go home. In January 2008, she and two other clerks were told to stop processing Express Mail because it could be done later. This directive upset complainant. In March 2008, complainant received a Letter of Warning for amassing 144 hours of absences without leave. These absences occurred on Thursdays and Fridays and were a direct result of complainant working her former schedule despite being assigned to a new one.
On November 30, 2007, complainant filed the instant formal complaint. Therein, complainant claimed that she was discriminated against on the bases of race (Asian) and national origin (Vietnamese) as evidenced by the manner in which the agency processed her assault complaint and in reprisal for prior protected EEO activity (arising under Title VII) when her bid assignment was abolished; she was told to go home; she was told to stop processing Express Mail; and she received the Letter of Warning.
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 complainant's objections, the AJ assigned to the case granted the agency's October 8, 2008 motion for a decision without a hearing and issued a decision without a hearing on July 9, 2009. Concerning the assault, the AJ found that complainant was upset because her co-worker was not disciplined. However, the AJ concluded that the determination not to discipline the co-worker was the result of a prompt and thorough investigation that failed to find evidence of intent. Because complainant failed to prove that other similar complaints, brought by non Asians and non-Vietnamese, were handled differently, the AJ held that complainant failed to establish a prima facie case of race or national origin discrimination.
Regarding complainant's claims of reprisal, the AJ found that complainant failed to prove that any of the agency's explanations for its actions were a pretext for retaliation. The AJ concluded that complainant's bid position was abolished consistent with the agency's operating needs and that the consequent discipline she experienced was a direct result of her refusal to accept the fact that she no longer held a bid position in what had been the Priority and Express Mail Section. 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.
CONTENTIONS ON APPEAL
On appeal, complainant states that the union was allowing management to reassign employees inconsistent with "contractual regulations" as a way of getting back at her for being a candidate who ran against the union President. She also claims that agency management allowed her to remain working in the Express Mail Section and only took disciplinary action against her after she filed the complaint concerning the assault.
ANALYSIS AND FINDINGS
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 in dispute. 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). 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.
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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 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.
Complainant fails to rebut the agency's explanation for abolishing her bid job and giving her a Letter of Warning, other than her assertion that the collective bargaining agreement was violated and that as a result, she was free to ignore managerial authority. Her belief, without more, is insufficient to overcome the agency's evidence. However, even if complainant provided evidence that the collective bargaining agreement was violated, her response to it, namely continuing to report to an abolished position, resulted in the agency's disciplinary action rather than any discriminatory animus, and we are not persuaded that a reasonable fact finder could, under the facts of this case, draw a justifiable inference in her favor. Consequently, the Commission concludes that the AJ's issuance of a decision without a hearing was appropriate.
We also agree with the AJ's legal analysis of the claims. Complainant did not proffer evidence from which an inference of race or national origin discrimination could be drawn with regard to the "assault." Moreover, complainant did not offer evidence to prove that the agency's legitimate and non-discriminatory reasons for abolishing her bid position, exercising managerial control in the Express Mail Section, and disciplining her for failing to be in regular attendance consistent with her Automation Section schedule were a pretext for retaliation. We discern no basis to disturb the AJ's decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 8, 2010
__________________
Date
2
0120093446
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013