Heather F. Mitchell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific area) Agency.

Equal Employment Opportunity CommissionFeb 28, 2007
0120051916 (E.E.O.C. Feb. 28, 2007)

0120051916

02-28-2007

Heather F. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific area) Agency.


Heather F. Mitchell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific area)

Agency.

Appeal No. 01200519161

Hearing No. 340a40205x

Agency No. 4F926010203

DECISION

JURISDICTION

On January 11, 2005, complainant filed an appeal from the agency's

December 30, 2004 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. 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.

BACKGROUND

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

a Cage Clerk in the Baldwin Park Post Office, Baldwin Park, California.

Complainant claimed that on December 13, 2002, she had a conversation

with her supervisor (S1) in which she expressed that she was offended

by the inappropriately sexual conduct between another supervisor (S2)

and a co-worker. Thereafter, complainant claimed that she was illegally

harassed.

On January 13, 2003, complainant contacted an EEO Counselor and filed

a formal EEO complaint on July 1, 2003. She alleged that she was

discriminated against on the bases of race (Caucasian), sex (female),

disability (arthritis and sinusitis), and in retaliation for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964

when the following occurred:

1. S2 (African American, male) told her to limit her breaks to 10

minutes;

2. S2 loudly discussed her performance on the workroom floor in front

of other employees;

3. S2 told her to discontinue use of her cell phone;

4. an audit was performed on her work area;

5. she was told to update her medical documentation for her request for

leave under the Family Medical Leave Act (FMLA) on two occasions;

6. she was given letters of warning on December 24, 2002, January 10,

2003 and June 11, 2003;

7. S3 (Mexican American female) gave complainant a flow chart to improve

her work performance on December 24, 2002; and

8. S3 demanded an explanation from complainant for why carriers were

being delayed.

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.

Thereafter, while the complaint was pending before the EEOC Administrative

Judge for consideration, complainant requested leave to amend the

complaint to add the following incidents:

1. complainant was issued a letter of warning on August 27, 2003 for

delayed express mail;

2. complainant received a letter of warning on December 23, 2003;

3. complainant was issued a 14 day suspension on January 29, 2004;

4. complainant was ordered to submit to a Fitness for Duty Examination

(psychiatric) on July 15, 2004;

Over the complainant's objections, the AJ assigned to the case granted

the agency's April 4, 2004 motion for a decision without a hearing and

issued a decision without a hearing on November 3, 2004. The agency

subsequently issued a final order adopting the AJ's finding that no

discrimination occurred.

DECISION OF THE ADMINISTRATIVE JUDGE

First addressing complainant's motion to amend the complaint filed on July

23, 2004, the AJ concluded that three of the incidents alleged were not

raised in a timely manner because they occurred more than 45 days from

the time complainant filed her motion. The AJ found that the incidents

were each discrete acts and complainant was required to bring them to

the attention of an EEO counselor within the regulatory time frame.

With respect to the last incident which occurred on July 15, 2004, the

AJ concluded that it was not like or related to the instant complaint

and should be processed as a separate complaint. For that reason, the

AJ denied complainant's motion to amend but granted complainant leave to

file a separate complaint as to her allegation surrounding the fitness

for duty examination.

Turning to the merits of complainant's complaint, the AJ found that

there were no genuine disputes of material fact to be resolved and a

decision without a hearing finding no discrimination was appropriate.

Specifically, the AJ found the evidence was undisputed that complainant

was treated no differently than other employees with respect to

disciplinary actions and measures taken to improve her performance.

For instance, S2 stated in his affidavit that he instructed several

clerks about the limit on breaks, not just complainant, because they

were taking more than the allotted time. The AJ further found that

there was no evidence other than complainant's speculation, that no

other employees had received letters of warning for similar kinds of

infractions for which she had received reprimands.

With regard to complainant's claim of retaliation, the AJ concluded

that there was no evidence that those supervisors cited as responsible

for the alleged harassment were aware of her participation in protected

EEO activity or that they had been influenced by S1 who was aware of

such activity. Additionally, the AJ found that there was no evidence

that any of the alleged incidents were motivated by discrimination based

on complainant's race or sex.

CONTENTIONS ON APPEAL

On appeal, complainant argues that the AJ erred in finding that there was

no genuine issue of material fact concerning the fact that the agency

retaliated against her because several of the agency's adverse actions

occurred in close proximity to her report of offensive sexual conduct

in the workplace. She contends that the evidence demonstrated that the

agency's actions were based on her protected status as set forth in her

Opposition to the Agency's Motion for a Decision without a hearing.

Complainant also contends that the AJ erred in denying her motion to

amend the complaint for being filed in an untimely manner.

The agency argues that the AJ's decision was correct and should be

affirmed based on reasons set forth in its motion for a decision without a

hearing. The agency contends that complainant never engaged in protected

activity because she did not allege that she had been sexually harassed

nor did she allege that the conduct at issue was unwelcome to either

of the individuals involved. Additionally, the agency argues that the

work place incidents at issue did not involve the upper level manager

with whom complainant voiced her objections and therefore, there could

not have been any retaliation taken against her.

STANDARD OF REVIEW

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").

ANALYSIS AND FINDINGS

As an initial matter, we address the AJ's decision to deny complainant's

motion to amend the instant complaint to add several additional incidents.

Generally, an AJ has the power to regulate the conduct of a hearing

and proceedings leading to the hearing absent abuse of discretion.

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(EEO MD-110), ch.7-8 pg. (November 9, 1999). Applying this principle,

complainant has offered no good reason to disturb the AJ's decision to

deny complainant's motion to amend the complaint. In addition, she has

not refuted that her motion was not raised in a timely manner, nor has

she offered any reason for the delay.

We agree that three of the incidents raised during the course of the

pre-hearing proceedings were discrete acts which should have been raised

within the time prescribed by our regulations. 29 C.F.R. � 1614.105(a)(1);

See Morgan v. National Railw'y Passeng'r, 122 S.Ct. 2061 (June 10, 2002).

We agree, therefore, with the AJ's decision to deny the amendments with

exception of the last, timely raised incident involving a referral for

a fitness for duty examination.

We turn now to 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.

In this regard, we agree with the AJ that even when viewing the evidence

in the light most favorable to complainant, she has failed to produce

sufficient evidence that the agency's actions may have been motivated by

discrimination on any of the alleged bases. In this case, complainant

alleged she was subjected to illegal harassment based on her race, sex

and in retaliation for her protected EEO activity when she was issued

various levels of disciplinary actions. The protected activity she

asserted was her reporting of inappropriate sexual conduct between a

co-worker and a supervisor. However, a review of the record demonstrates

that other than her bare statements, complainant did not refute the

agency's reasons for issuing her disciplinary action. For instance,

S2 stated that he gave complainant a letter of warning because of her

poor conduct when she "yelled" at the Postmaster and when she would not

respond to a directive to return to her work area.

S3 recounted that she issued complainant a letter of warning because of

her poor work performance but complainant did not specifically respond

to this evidence or offer any evidence that S3 should not be believed.

She also did not deny that she had engaged in the conduct asserted. In

addition, S3 gave reasons for auditing complainant's work flow to

which complainant offered no response. Specifically, S3 stated that

complainant's poor work habits and inefficient use of time prompted

her to request an audit of her daily tasks and to develop a flow chart

to instruct her how to improve her performance. The agency presented

evidence that others outside of complainant's protected class were also

given flow charts to improve their performance. Complainant offered no

evidence to the contrary or evidence that discriminatory factors more

likely motivated the agency's actions.

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). Complainant had sufficient opportunity to engage in

discovery as she was given ample time to obtain evidence supportive of her

allegations based on the AJ's order establishing a period for discovery.

(See Acknowledgement Order dated March 3, 2004). Even with this period

of discovery, complainant was unable to proffer evidence sufficient to

create a genuine issue of material fact that the agency's actions were

based on her membership in a protected class.

Turning to complainant's claim of retaliation and in accordance with

the burdens set forth in McDonnell Douglas supra, 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) Whitmire

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

25, 2000), we affirm the AJ's determination that complainant failed

to establish a genuine issue of fact that the agency's managers were

motivated by retaliation for her report of improper sexual conduct on

the part of co-workers. Complainant simply failed to come forward

with evidence that S2 and S3 were even aware of complainant's protected

activity or that they were improperly influenced by S1, who was aware.

As a result, the evidence was insufficient to create a triable issue

that they were motivated by retaliation.

Finally, there being insufficient evidence that the agency's actions

were motivated by discriminatory animus on any of the alleged bases,

we are unable to find that complainant met her burden of demonstrating

that the agency's actions amounted to illegal harassment.2

CONCLUSION

Based on the foregoing analysis and considering complainant's statement

on appeal and the agency's response in opposition thereto, the

Commission concludes that the AJ's decision without a hearing finding

no discrimination was appropriate. Therefore, we affirm the agency's

decision.

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

_ 2/28/07_________________

Date

1 Due to a new data system, this case has been re-designated with the

above-referenced number.

2 According to the substantive law governing claims of harassment,

complainant must show she is a member of the statutorily protected class;

(2) she 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. The harasser's conduct should

be evaluated from the objective viewpoint of a reasonable person in

the victim's circumstances. Enforcement Guidance on Harris v. Forklift

Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).

??

??

??

??

2

0120051916

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

8

0120051916