0120082284
08-25-2009
Dolores H. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Dolores H. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120082284
Hearing No. 410-2007-00302X- MDL
Agency No. 1H-301-0010-07
DECISION
On April 10, 2008, complainant filed an appeal from the agency's March
5, 2008 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly issued
a decision without a hearing, which found that complainant had not been
discriminated against.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Mail Processing Distribution Clerk at the agency's Atlanta
Processing and Distribution Center facility in Atlanta, Georgia.
On February 28, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of sex (female), disability
(stress, asthma and arthritis), age (67), and in reprisal for prior
protected EEO activity arising under Title VII, the ADEA, and the
Rehabilitation Act when:
1. on November 12, 2006, she was threatened by a male co-worker and
management did not take corrective action;
2. on December 12, 2006, her request for advanced sick leave was denied;
and
3. on January 13, 2007, she was verbally harassed, denied medical
attention, and told to leave the building.
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. The agency submitted a motion for a decision
without a hearing on November 1, 2007, and complainant submitted her
objections on November 17, 2007. The AJ issued a decision without a
hearing on February 27, 2008.
In her decision, the AJ found that the complaint was appropriate for
a decision without a hearing, and that there were no genuine issues
of material fact in dispute. The AJ found that with regards to the
November 12, 2006 incident, the undisputed facts were that a co-worker at
the facility (CO-1), a hearing impaired individual, was driving a mail
tram and nearly hit complainant when he failed to stop at a stop sign
within the facility. Complainant claimed that CO-1 made a threatening
gesture at her after the incident. She reported the incident to an agency
manager (MO-1) who conducted an immediate investigation into the matter.
MO-1 determined that the gesture made by CO-1 meant one thing to him
as a hearing impaired individual, and another thing to complainant.
MO-1 placed both complainant and CO-1 on administrative leave until
the Postal Inspection Service could investigate the matter. The Postal
Inspection Service and the Threat Assessment Team determined from the
facts presented to it that there had been no credible threat made against
complainant.
As to claim 2, on December 12, 2006, while still on leave after the
November 12, 2006 incident, complainant requested advanced sick leave from
the agency. The Plant Manager (MO-2) denied complainant's request for
advanced sick leave. The leave request form did not state an end date,
although the medical documentation accompanying it stated complainant
could return to work on February 1, 2007. MO-1 and MO-2 both stated
that the leave was denied due to the length of time requested.
Regarding claim 3, the incident on January 13, 2007, occurred on
complainant's return to work, when another supervisor (MO-3) told
complainant to leave the facility because her medical documentation
was not in order. Following the dispute between MO-3 and complainant,
complainant requested medical attention and was taken to the hospital
by ambulance. Management officials denied complainant's contention
that medical care was withheld from her. According to an official,
the only delay between complainant's request for medical care and the
arrival of the ambulance was the time it took to call 911 and the time
it took for the ambulance to arrive on the scene.
The AJ concluded that complainant had failed to articulate a prima
facie case on any of her claimed bases because she had not suffered
any adverse action. 1 Even assuming complainant had put forth prima
facie cases on her claimed bases, the AJ concluded that the agency had
articulated a legitimate, nondiscriminatory reason for each action,
and that complainant failed to show that the reasons given were pretext
for discrimination. The AJ also found that complainant had not shown a
prima facie case of harassment. Regarding claim 1, the evidence showed
that the agency had in fact engaged in an investigation into the incident,
and determined that no credible threat had been made. Regarding claim
2, the record contained a copy of the Postal Service Policy and Labor
Relations Manual which provides in � 513.511 that advanced sick leave
requests may not exceed 30 days. Complainant's leave request was for
nearly 50 days. Finally regarding claim 3, complainant had not shown how
the incident with MO-3 was in way linked to one of her protected bases.
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. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her brief on appeal, complainant claims that the AJ should not
have issued a decision without a hearing because there were outstanding
discovery requests, and a Motion to Compel which had not been ruled upon.
She argues generally that the record was not adequately developed so as
to support a decision without a hearing. In its brief in opposition to
complainant's appeal, the agency argues that the AJ's decision should
be upheld, that a decision without a hearing was properly issued and
that complainant has not shown that she was subjected to unlawful
discrimination on any of her claimed bases.
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); Murphy
v. Department of the Army, EEOC Appeal No. 01A04099 (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).
We find that there were no material facts in dispute such that the AJ
would have been required to hold a hearing. In her motion opposing the
agency's motion for summary judgment, the complainant did not point to
specific facts which were in dispute which would require the AJ to take
testimony and weigh the credibility of the witnesses. In her decision,
the AJ viewed the facts in the light most favorable to complainant
when examining complainant's claims. Specifically, as to claim 2, that
complainant was denied advanced sick leave, there was some conflict in the
record as to whether complainant had asked for an open-ended amount of
advanced sick leave, for a year and a half, or for a month and a half.
The AJ assumed that even had complainant only asked for a month and
a half, the agency denied the request because its policies state that
advanced sick leave requests may not exceed 30 days.2
We note that although complainant claimed that she was threatened by
CO-1 and management did not take corrective action, the affidavits in
the record state that the managers to whom complainant complained about
CO-1's actions contacted the Postal Inspection Service, which conducted an
investigation into the incident. The Postal Inspection Service determined
that no credible threat existed. That report is contained in the record.
Complainant does not dispute the existence of the Postal Inspection
Service investigation, only the thoroughness of the investigation
because she was not interviewed directly, as the Inspectors obtained the
information on the incident from the facility managers. Additionally,
we note that it was the testimony of MO-1 that CO-1 was subsequently
moved to the other side of the building in order to limit his contact
with complainant. Finally, with respect to claim 3, we agree with the
AJ's conclusion that complainant failed to establish how the incident
with MO-3 was in way linked to one of her protected bases.
As to complainant's argument in her brief on appeal that the investigation
was inadequate, and the record not fully developed, we find that she
does not specify what was missing from the record, what she hoped to
learn through her discovery requests, or even what genuine issues of
material fact were in dispute such that the AJ would have had to hear
testimony and make credibility findings. Our own independent review of
the record finds that it was adequately developed for the purposes of
adjudicating the matter, and in the absence of a clear statement from
complainant as to what is lacking, we find that the agency and the AJ
properly relied on the record as it exists.
After a thorough review of the record, and the arguments submitted by
the parties on appeal, including those not addressed herein, we find that
the AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. We further find that the AJ's conclusion
that complainant has not shown that she was discriminated against based
on her sex, age, disability or in reprisal for previous EEO activity,
and the agency's implementation of that decision, was correct, and we
AFFIRM the agency's finding of no discrimination.
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
08/25/09
_________________
Date
1 We note that under well established Commission precedent, complainant's
claims clearly meet the threshold to survive a dismissal for failure
to state a claim under 29 C.F.R. � 1614.107(a)(1). However, as the
AJ continued to analyze complainant's complaint by assuming she had
satisfied the prima facie element of suffering an adverse action, we
find this was harmless error.
2 We note that complainant's claim does not state that she was requesting
the advanced sick leave as a reasonable accommodation or that the agency
denied her request for a reasonable accommodation.
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0120082284
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082284