0120071388
04-01-2009
Katrice Binion, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Katrice Binion,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071388
Agency No. 4H-350-0032-06
Hearing No. 420-2006-00113X
DECISION
Complainant filed an appeal with this Commission from the December 2,
2006 agency decision which implemented the November 17, 2006 decision
of the EEOC Administrative Judge (AJ) who found no discrimination.
Complainant alleges 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. Specifically, complainant, a full-time City Carrier,
alleged that the agency discriminated against her on the bases of sex
(female) and reprisal for prior protected EEO activity when: (1) because
of her sex, she was issued a 14-day suspension for unsatisfactory work
performance on December 23, 2005; (2) because of her prior EEO activity,
her supervisor returned her restriction and medical release papers and
told her to get off the clock on March 30, 2006; and (3) because of
her prior EEO activity, her supervisor followed her around on March 31,
2006, and told complainant that she did not have any work for her and
to return to work when her restrictions ended on April 4, 2006.
After an investigation, complainant requested a hearing before an AJ.
The AJ issued a decision without a hearing (summary judgment).
Regarding claim (1), the AJ found that because complainant's 14-day
suspension was reduced to an official discussion, complainant did not
state a claim because she was not aggrieved and, also, that there was
no indication of any continuing effect on complainant arising from the
suspension. Regarding claims (2) and (3), the AJ found that complainant
failed to present a prima facie case of reprisal because she did not
suffer a materially adverse change in the terms and conditions of her
employment.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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).
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
This Commission has consistently held that official discussions alone do
not render an employee aggrieved. See Miranda v. United States Postal
Service, EEOC Request No. 05920308 (June 11, 1992); Devine v. United
States Postal Service, EEOC Request Nos. 05910268, 05910269 and 05910270
(April 4, 1991). The Commission has also stated that adverse actions
need not qualify as "ultimate employment actions" or materially affect
the terms and conditions of employment to constitute retaliation.
Lindsey v. United States Postal Service, EEOC Request No. 05980410
(November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20,
1998)). Instead, the statutory retaliation clauses prohibit any adverse
treatment based upon a retaliatory motive and which is reasonably likely
to deter complainant from engaging in protected activity.
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. �1614.110(b), the decision is subject to de novo
review by the Commission. 29 C.F.R. �1614.405(a).
Regarding claim (1), the record reveals that on December 8, 2005,
complainant's supervisor received a telephone call from complainant
stating that she had locked her keys in her vehicle. Complainant's
supervisor obtained an extra key from Vehicle Maintenance. When
complainant's supervisor met complainant, she discovered that the
vehicle was running and the vehicle key was locked inside. The record
reveals that complainant did not inform her supervisor that the vehicle
was running when she called in and it took the supervisor 45 minutes
to get to complainant. The record also reveals that complainant had
locked her keys in her vehicle on November 15, 2005. The record reveals
further that on December 23, 2005, complainant was issued a 14-day "no
time off suspension" for unsatisfactory work performance as a result
of the incident on December 8, 2005. The record indicates that at the
time of the disciplinary action, complainant had an active prior 14-day
suspension in her file, dated December 2004, from a previous office for
poor work performance. The record further reveals that the December 23,
2005 disciplinary action was reduced to an official discussion on January
28, 2006.
The record reveals that Person A, a male City Carrier, was given an
official discussion when he locked his keys in a vehicle. In her
affidavit, the Acting Manager of Customer Service stated that complainant
had locked her keys in the vehicle several times which appeared to
be a time wasting practice, that complainant had constantly extended
her street time, and that complainant's work performance had been
unacceptable. She stated that she had knowledge that Person A had
locked his keys in his vehicle in one instance and that his supervisor
gave him an official discussion since this was Person A's first time
locking keys in his vehicle. Even if complainant was aggrieved, we
find that complainant has failed to show that the agency's legitimate,
non-discriminatory reasons for issuing the discipline at issue in claim
(1), (which was reduced to a discussion), were pretextual.
Regarding claims (2) and (3), the record discloses that complainant had
non-work-related eye surgery on March 21, 2006, and that she requested
advance sick leave for March 21, 2006 only. The record reveals that
complainant came to the worksite on March 21, 2006, and requested
time off which her supervisor granted. The record reveals further that
complainant returned to work on March 25, 2006, with medical restrictions
of no lifting or carrying over 10 pounds and no activities resulting in
rapid head movement until April 4, 2006. The record reveals also that
complainant's supervisor allowed complainant to "case" mail on March 25,
March 27, and March 28, 2006, although complainant had not officially
requested light duty for her condition. The record reveals further that
complainant's off day was March 29, 2006. When she returned to work
on March 30, 2006, complainant still had not completed any paperwork or
documentation requesting light duty. After "casing" mail, complainant's
supervisor told her that she did not have any more such work available.
When complainant returned to work on March 31, 2006, her supervisor
asked her whether she had been released from medical restrictions
and complainant indicated that she had not been released. The record
also reveals that because complainant's supervisor had enough workers
scheduled for that day, she informed complainant that she did not have
any work available and that she should return to work on April 4, 2006,
when her restrictions were to be lifted. Complainant did not complete
a leave slip although offered one by her supervisor and her supervisor
placed complainant on leave without pay for the hours that she did not
work on March 30, March 31, and April 1, 2006.
In her affidavit, complainant's supervisor, who in December 2005,
was supervising complainant for the third month, stated that she had
complainant "case" her route on March 30, 2006. She also stated that
she told complainant that she would not have any work for her after she
"cased" and "pulled down." Complainant's supervisor stated that when
complainant came into work on March 31, 2006, to check her vehicle,
she asked her whether her doctor had released her from restrictions and
complainant stated that her doctor had not. She stated further that
she asked complainant why she was checking her vehicle, knowing that she
would not allow complainant to drive until her restrictions were lifted.
Complainant's supervisor stated that on the days when complainant
worked, she worked with complainant so that she could help complainant
lift any tubs which she thought were too heavy for complainant to lift.
She stated that complainant failed to submit a request for official
temporary light duty.
The Commission finds that even if complainant stated a claim of reprisal
in claims 2 and 3, the agency articulated legitimate, non-discriminatory
reasons for its actions which were not shown to be pretextual by
complainant.
Upon review, the Commission finds that a grant of summary judgment
was proper because there exists no genuine issue of material fact.
Assuming, without deciding, that complainant has established a prima
facie case on each basis, the Commission finds that the agency has
established legitimate, nondiscriminatory reasons for its actions and
that complainant has failed to show that the agency's actions were mere
pretext to mask unlawful discrimination. Construing the evidence in a
light most favorable to complainant and to the extent that complainant
may be claiming that she was being harassed, complainant has not shown
by a preponderance of the evidence that the agency was motivated by
discriminatory animus when it engaged in the alleged discriminatory
actions.
The agency's finding of no discrimination is AFFIRMED.
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
April 1, 2009
__________________
Date
6
0120071388
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013