0120113366
08-27-2013
Laura Gomez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Laura Gomez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120113366
Hearing No. 480-2009-00528X
Agency No. 4F-926-0024-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 17, 2011 final action 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transitional Employee (TE) City Letter Carrier, Q-CC-01, at the Agency's Carson Branch facility in Carson, California.
On February 20, 2009, Complainant filed the instant formal complaint alleging that she was subjected to harassment and a hostile work environment on the bases of sex (female), age (40), and in reprisal for prior EEO activity when:
beginning in November 2008, she was denied help; laughed at and mocked; spoken to in a threatening, rude, and condescending manner; compared to younger co-workers; questioned after taking sick leave; denied annual leave; and on or around December 10, 2008, her TE appointment was not renewed.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. The record reflects that Complainant did not respond to the Agency's motion. On March 7, 2011, the AJ issued a decision by summary judgment in favor of the Agency.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
Timeliness of Appeal
As a threshold matter, we find that Complainant's appeal was timely filed. The record contains a United States Postal Service "Track & Confirm" print-out, which indicates a delivery in destination in 90280, without any further detail of the address. We determine that there is no evidence, other than this generalized reference to a destination number, indicating that Complainant received the final decision on the above date. Where as here, there is an issue of timeliness, "[a]n Agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the Agency has the burden of providing evidence and/or proof to support its final decision." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Therefore, we find that Complainant's appeal was timely filed.
Summary Judgment
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
We note that Complainant failed to respond to the Agency's motion for summary judgment when this matter was before the AJ. Now, on appeal, she argues that the AJ erred in issuing a summary judgment and states, "what happened to me may not have been in the U.S.P.S. code of federal Regulations, but I strongly believe it is not right that I worked as a Casual and T.E. for 12 years, and just because I was not a career employee, I was treated this way and shut down by a supervisor who has a history of complaints on him."
In rendering a decision in favor of the Agency by summary judgment, the AJ determined that the record gathered during the investigation contained the following undisputed facts. Complainant started working as a TE beginning December 17, 2007, through virtually the entire year of 2008. The record further reflects that TEs are not career employees, but instead are employed for a term of up to 359 days, after which their employment is terminated. A break in service of at least six days is required if the Agency wants to renew them for another term.
TEs receive carrier academy training before starting to work as a carrier. Complainant originally started working at the Agency's facility at East Long Beach, but was soon transferred by management to the Carson facility.
At Carson, Complainant had an accident when backing up a postal vehicle where she was found to be at fault. As a result, she received a no-time-off suspension in August 2008.
The day before the Veterans Day holiday in 2008, Complainant called in sick. A supervisor questioned her about calling in sick, although there is no indication she was denied the sick leave or disciplined for this incident. The record also establishes that in November 2008, another supervisor laughed in Complainant's presence when a third party referred to her as a good worker.
On November 12 and 13, Complainant had issues with her supervisors regarding completion of her route within the assigned times and proper clocking in and out. Complainant asserted that when she requested assistance on November 12, 2008, this supervisor told her "to keep going" and that she better start "running." The supervisor stated that she regularly failed to make appropriate clock ring moves to show completion of assigned duties accurately.
Complainant's alleged that on November 13, 2008, the Manager of Customer Service spoke to her in a threatening, rude and condescending manner when he approached her on the dock and asked why she was still in the building and leaving so late. Complainant responded that she had returned from delivering mail that she had brought back from the previous day. The Manager asked her who authorized her to bring mail back and she stated the supervisor. The Manager then asked her when her term expired. Complainant perceived this as a threat, which the Manager denied, but Complainant stated she would not be threatened and walked off the job. Complainant was charged with being AWOL for this time
On November 14, 2008, Complainant called in sick and asked to use annual leave for a doctor's appointment. The supervisor apparently initially responded that he could not do it because she had called in sick. However, on November 20, 2008, the Manager told Complainant in order to get annual leave, she needed to fill out a form ("3971") requesting the annual leave. When Complainant responded that she did not understand what she had to do, the Manager replied, "What? You don't understand time?" which she found rude. Complainant received the annual leave she requested.
The Manager stated that after discussions with Complainant's supervisors, he made a determination not to renew Complainant's TE appointment based on "poor job performance, poor attendance, poor safety, unacceptable conduct." Specifically, MCS stated that Complainant "was given ample opportunities to correct her deficiencies. She was involved in an accident. She had unsatisfactory performance, safety, conduct, and attendance."
Based on this evidence, the AJ found that Complainant did not establish a prima facie case of sex, age and reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. The AJ found that the Agency did not renew Complainant's TE employment based on her poor performance.
With respect to Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on sex, age and retaliation. The AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
August 27, 2013
__________________
Date
2
01-2011-3366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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