0120131815
09-12-2013
Leslie L. Schrick, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Leslie L. Schrick,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131815
Hearing No. 510-2011-00625X
Agency No. 1G-321-0003-11
DECISION
Complainant filed an appeal from the Agency's March 8, 2013, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Data Collection Technician at the Agency's P&DC facility in Gainesville, Florida.
On May 26, 2011, Complainant filed an EEO complaint alleging that the Agency harassed her and discriminated against her on the bases of race (Caucasian), sex (female), age (54), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On April 14, 2011, management issued Complainant a Letter of Warning (LOW); and
2. On an unspecified date, Management denied her request for a detail to the position of Acting Operation Support Specialist.
The record shows that an Asian male, who was younger than Complainant, had been detailed to fill the position of Acting Operation Support Specialist (A/OSS) and was serving in that function during April of 2011. Complainant objected to his placement. It is undisputed that Complainant refused to accept the Asian male employee in his role as A/OSS. She openly displayed disrespectful conduct in communicating with him.
On April 12, 2011, the A/OSS tried to instruct Complainant on how certain information should be inputted; Complainant would not speak to him. When a meeting was called to discuss the issues, Complainant stood up to walk out, stating, "I'm not talking to you." When she was told that if she did not stay in the office that it would become a Fact-Finding, if she left, her response was "Be my guest, give me a Fact-Finding."
On that same day, Complainant and her immediate supervisor were told that the Plant Manager wanted to see them in his office immediately. Complainant asked if she could bring her union representative.1 The Plant Manager would not allow the union representative to participate.
According to Complainant, the Plant Manager proceeded to talk about his choice for the A/OSS detail and why "Complainant can't handle an A/OSS detail." He also questioned why Complainant refused to speak to another management official, the Manager of Distribution Operations. The meeting lasted 25 minutes; and Complainant believed it was completely "negative, biased, and character assassinating".
The A/OSS issued Complainant a Letter of Warning ("LOW") dated April 14, 2011 which Complainant received on April 19, 2011. The LOW charged Complainant with (1)) Conduct Unbecoming; (2) Failure to Follow Instruction; and (3) Insubordination.
As further background, Complainant acknowledged that the alleged management harassment, that is the subject of this appeal, "started five minutes after she returned to work following her one hour FMLA usage." The record shows that, on April 7, 2011, Complainant took an hour of leave under the Family and Medical Leave Act (FMLA) at the end of her tour. Her supervisor was not told of Complainant's request, because the supervisor had already gone at the time Complainant left at 2 PM on April 7, 2011. On April 8, 2011, Complainant's supervisor gave Complainant an official discussion. Complainant then emailed her supervisor and Complainant told her supervisor that she believed "this was harassment."
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and requested a hearing before an EEOC Administrative Judge (AJ). Over Complainant's objections, the AJ issued a decision without a hearing finding no discrimination.
The AJ concluded that Complainant's response did not address the material facts of the underlying claim. The AJ found that Complainant failed to provide evidence to establish the elements of her prima facie case, because "Complainant has failed to identify any similarly situated individual outside of her protected groups that engaged in the same or similar conduct and fared any better than she."
The AJ then found that "Complainant is unable to establish a prima facie case of reprisal because she has not established an adverse action" because she requested a detail assignment when there was no assignment available for which she could apply. In addition, the AJ found that "none of the events cited by the Complainant either individually or collectively meet the threshold necessary to establish a hostile environment claim."
The Agency's final action implemented the AJ's decision.
This appeal followed.
ANALYSIS
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
As an initial matter, we note that Complainant did not identify any specific credibility issues or material facts in dispute regarding the claims that are before us. Instead, she challenges the Agency's authority to appoint her co-worker as the A/OSS. She questions whether she received an official instruction which she disobeyed.
We find that she established that she is a member of a statutorily protected class (female, age 55, who claimed to have been harassed). We do not find evidence that would show that the actions complained were based on her being a female, age 55, or due to any prior EEO activity. On the contrary, in her statement on appeal, Complainant acknowledges that "this harassment may stem from a problem I have had with the FMLA Process."
Further, the record does not show that she was subjected to an adverse action with regard to the denial of the detail or denial of an available open position for which she applied. The position she sought was already encumbered. There was no adverse action.
With regard to the reprisal claim, the Commission has stated that adverse actions need not qualify as "ultimate employment action" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 2998).
Assuming she established her prima facie claims, the Agency articulated a legitimate, nondiscriminatory reason for each of the actions. For claim one, the Agency issued the Letter of Warning for conduct reasons. Complainant concedes that she spoke with the A/OSS in a hostile tone and made the statements attributed to her.
For claim two, the Agency stated there was no position available to which she could be detailed. The stated reasons are supported by the undisputed evidence.
For Complainant to prevail, she would have to show that the stated reasons were a pretext for unlawful discrimination. There is no evidence of pretext. Further, Complainant did not identify, and our review did not uncover any material evidence that was missing from the record.
After a careful review of the record, we find that the AJ appropriately concluded that there was no genuine issue of material fact or credibility in this case. Consequently, we find that the AJ properly concluded that the Agency was entitled to summary judgment.
CONCLUSION
Therefore, we AFFIRM the Agency's final action.
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 tends 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
September 12, 2013
__________________
Date
1 This issue was the subject of another appeal, Schrick v. United States Postal Service (Southeast Area), EEOC Appeal No. 0120123096 (January 11, 2013) (affirming the dismissal of subsequent harassment and reprisal claims originating in 2012).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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