01a53067_r
07-15-2005
Lisa A. Gashlin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lisa A. Gashlin v. United States Postal Service
01A53067
July 15, 2005
.
Lisa A. Gashlin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53067
Agency No. 4B-0400009-02
Hearing No. 160-2005-00215X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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.
Complainant, a Mailhandler at the agency's Rand Road Annex in Portland,
Maine, filed a formal EEO complaint dated May 12, 2003. The agency
combined the EEO complaint with claims in an April 26, 2002 request
for counseling by complainant. The agency defined complainant's EEO
complaint as being comprised of the claims that she was subjected to
unlawful employment discrimination on the bases of sex (female) when:
(a) in February 2002, she was told she could not use her cell phone at
work;
(b) on March 7, 2002, she was �removed� from her work unit; and
that she was retaliated against for prior EEO activity when
(c) on April 16, 2002 she was subjected to �humiliation� by a supervisor;
and
(d) management failed to release to her the internal investigation
conducted as a result of her harassment claim.
On August 14, 2004, in response to the agency's May 30, 2002 acceptance
of the above-stated combined complaint/acknowledgment of amendment,
complainant requested that another claim be added to her complaint.
Complainant claimed that based on sex:
she was stalked by a Supervisor for months until she was transferred
to the Mail Handler craft.
On August 18, 2004, the agency acknowledged the amendment, and dismissed
the added claim on the grounds of untimely EEO Counselor contact.<1>
The record indicates with regard to claim (a), that complainant stated
that �she continued to use [her] cell phone whenever necessary,� and that
she was not disciplined for her use or her failure to follow instruction.
Concerning claim (b), the record shows that after complainant protested
her reassignment to a different unit in the same Annex, she was allowed to
remain in her original unit after being placed in the new unit �for about
an hour.� With regard to claim (c), the record shows that complainant
was asked to leave a meeting concerning a union management initiative
involving a union to which complainant was not a member. After complainant
protested, she and others were asked to continue distribution of mail
to carrier cases and complainant left the meeting. Finally, regarding
claim (d), after complainant initiated her EEO complaint, management
conducted an internal investigation of her claims of sexual harassment.
When complainant requested a copy of the investigation, she was sent
a memorandum denying release of the investigation at that time so as
not to interfere with the current investigation of her EEO complaint,
and advising her that a copy of the investigation may be part of her
EEO file.
At the conclusion of the complaint investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ concluded that no material facts were
in dispute, and issued a summary judgment decision without a hearing,
finding no discrimination.
In the AJ's February 14, 2005 decision, the AJ found that complainant
failed to establish a prima facie case of disparate treatment or reprisal
discrimination, and that even if she had, she could not show that the
agency's articulated reasons for its actions were a pretext to mask
unlawful discrimination. Regarding claims (a) and (b), the AJ first
found that the agency actions did not rise to the level of adverse agency
actions. The AJ determined that being told not to use her cell phone on
the work floor and being assigned to a work area she did not prefer for
an hour were not employment actions, and even if they did rise to the
level of adverse agency actions, there was no evidence that the actions
were taken because she was female or that male employees were treated
more favorably. Regarding claims (c) and (d), the AJ also found that no
adverse treatment existed. The AJ found that even if adverse treatment
were found, the agency articulated legitimate, nondiscriminatory reasons
for both claims in that complainant was requested to leave an official
meeting to which she was not invited and denied immediate access to
information to which she was not entitled. Finally, the AJ concluded
that despite her claims of a biased investigation and untruthful claims
by the agency, complainant failed to identify any evidence to show that
the agency's articulated reasons for its actions were not legitimate.
The agency adopted the AJ's decision in its final action issued on
February 16, 2005.
As a preliminary matter, the Commission determines that complainant
does not appeal from the agency's partial dismissal, on the grounds of
untimely EEO Counselor contact, of the claim regarding being stalked by
her Supervisor. We note that on appeal, complainant expressly states
that she is �appealing the summary judgment decision.� Accordingly,
the Commission addresses only claims (a) - (d), which were adjudicated
on the merits.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. See Murphy v. Department of the Army, EEOC Appeal No. 01A04099
(July 11, 2003).
Moreover, we find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Further, construing the evidence to be most favorable to complainant,
we find that complainant failed to present any evidence that the agency's
actions were motivated by prohibited discrimination.
Accordingly, the agency's final action implementing the AJ's finding of
no discrimination is AFFIRMED.
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
July 15, 2005
__________________
Date
1We note that complainant did not raise
objection to the agency's partial dismissal below or on appeal, and we
therefore do not address the previously dismissed claim in our decision.