0120093746
08-04-2011
Maria Montez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Maria Montez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120093746
Agency No. 4G-770-0159-08
DECISION
Complainant timely filed an appeal from the Agency’s August 28, 2009,
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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency’s final
order.
ISSUES PRESENTED
1) Whether the Administrative Judge (AJ) properly issued a decision
without a hearing.
2) Whether the AJ properly found that Complainant did not establish that
she was subjected to unlawful discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Part-Time Flexible Letter Carrier at the Agency’s Pasadena,
Texas Post Office. On April 9, 2008, Complainant filed an EEO complaint
alleging that the Agency subjected her to discrimination on the bases
of race (Hispanic)1, national origin (Mexican), sex (female), disability
(knee), age (44), and in reprisal for prior protected EEO activity under
Title VII when:
1. On February 13, 2008, she was issued a seven-day suspension for being
involved in a workplace accident on January 3, 2008;
2. The Agency did not comply with her medical restriction of a maximum
eight-hour workday;
3. She was not given a day off during the week of June 16, 2008;
4. On June 18, 2008, when she had doctor appointments, she was ordered
to report to work immediately or face discipline;
5. In January, 2009, she did not receive a workers’ compensation form
when she requested one; and
6. In January, 2009, she did not receive official time to work on her
EEO claim.
In an investigative affidavit statement, Complainant stated that on
January 3, 2008, something in her knee popped as she was exiting her
vehicle while on the job. Aff. B, p. 5; Ex. 3. Complainant stated
that the Agency responded by issuing her a seven-day suspension on
February 13, 2008. Ex. A, pp. 45-46. Complainant also stated that this
suspension was discriminatory because the accident was not her fault.
Complainant’s Brief in Opposition to Agency’s Motion for Summary
Judgment (Compl.’s SJ Br.). Complainant further stated that similarly
situated people outside of her protected class were not suspended for
getting injured on the job. Aff A., pp. 15-16.
Complainant’s secondary Supervisor (S2) stated that the
Agency’s decision to issue Complainant a seven-day suspension
was not discriminatory in nature. Specifically, he pointed to other
similarly-situated individuals outside of Complainant’s protected class
who also received suspensions for getting injured on the job. Aff. C,
p. 4; Ex. 17. Complainant’s primary Supervisor (S1) further stated
that the Agency had a legitimate, non-discriminatory reason for issuing
the suspension, as it was Complainant’s third injury in two years and
Agency guidelines require care to avoid personal injury. Ex 3; Aff. A,
p. 46.
Complainant stated that the Agency’s reasons for the suspension
were merely a pretext for discrimination because they could not prove
any negligence on the part of the Complainant. Compl.’s SJ Br.
Complainant also stated that the similarly-situated individuals presented
by the Agency were involved in accidents that were their fault. Id.
The record reveals that through the grievance procedure, Complainant was
successful in having the suspension decreased to a letter of warning,
then to become an official discussion after eight months if no more
accidents occurred on the job. Ex. 15.
Complainant also stated that the Agency continuously tried to force her
to work over eight hours, violating her medical restrictions. Aff. A,
pg. 24. When asked, Complainant did not give a date on which she was
forced to work over eight hours. Id.
The Clerks’ Supervisor (S3) stated that the only time Complainant
worked over eight hours was on January 3, 2008, and it was for eight
hours and three minutes because Complainant clocked in early. Aff. D,
p. 19; Ex. 14.
Complainant further stated that she did not have a day off on the week of
June 16, 2008, and she is supposed to have a day off each week. Aff. A,
p. 14. She stated that she did not request a day off, but there was one
on the schedule for June 18, 2008. Id. at 13-14. Complainant further
stated that, on June 18, 2008, the Agency called her husband and told
him that she had to report to work or be disciplined. Id. at 14-15.
S3 stated that, while the Agency required Complainant to work every
day for the week of June 16, 2008, it was not discriminatory because
Complainant was a Part-Time Flexible employee and such employees are
not required to have a day off. Aff. D, p. 13.
Finally, Complainant stated that in January, 2009, she did not receive a
workers’ compensation form when she asked for one. Supplemental Aff. A,
p. 2. Complainant stated that she was told she was not on workers’
compensation when she actually was. Id. Complainant also stated that
she was denied official time to work on her EEO complaint when she was
not allowed to see her Union Steward in regard to obtaining a workers’
compensation form on January 21, 2009, and January 27, 2009. Attach. to
Agency’s Motion.; Supplemental Aff. A, pp. 5-6.
Complainant timely requested a hearing before an AJ. On June 22, 2009,
the Agency filed a Motion for Findings of Fact and Conclusions of Law
without a Hearing (Agency’s Motion). Complainant responded with a Brief
in Opposition to the Agency’s Motion. Over Complainant's objections,
the AJ rendered a Decision without a Hearing on August 20, 2009, in
which she found no discrimination. Specifically, the AJ found that there
were no material facts in dispute and that Complainant failed to allege
facts sufficient for a finding of discrimination. The AJ also found that
Complainant was not denied official time to work on her EEO complaint.
The Agency subsequently issued a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred when she issued a
finding of no discrimination without a hearing. Specifically, she
contends that the AJ’s decision claimed she did not file a Brief in
Opposition to the Agency’s Motion, although she did file such a brief.
Complainant claims that the AJ’s mistake constitutes a judicial error
sufficient to remand the case for a hearing. Furthermore, she argues
the AJ improperly accepted the Agency’s version of the facts, although
there are still several material facts in dispute. The Agency contends
that Complainant’s Brief in Opposition to the Agency’s Motion was
in reference to a different motion, and there are no material facts
in dispute.
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 Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.B. (Nov. 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 Chap. 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
Decision without a Hearing
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. 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. Dep’t of Def., EEOC Appeal
No. 01A24206 (July 11, 2003). We find that the AJ properly issued a
decision without a hearing because Complainant failed to show that a
genuine issue of material fact or credibility existed to be resolved
through a hearing.
Disparate Treatment
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental
Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, she must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978).
Once Complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
non-discriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance of
the evidence that the Agency’s reason(s) for its action was a pretext
for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason.
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
In a reprisal claim, a Complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25,
2000).
In addition, we note that according to the Commission's regulations,
federal agencies may not discriminate against individuals with
disabilities and are required to make reasonable accommodation for the
known physical and mental limitations of qualified individuals with
disabilities, unless an agency can show that reasonable accommodation
would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p);
see Appendix. For purposes of our analysis, we assume without so finding
that Complainant is an individual with a disability.
Claim 1
Complainant contends that the Agency was motivated by unlawful
discriminatory animus when it issued her a seven-day suspension for
injuring herself on the job on January 3, 2008. For purposes of analysis,
and without so finding, we assume that Complainant has established a prima
facie case of discrimination. Nevertheless, we further find that the
Agency provided a legitimate, non-discriminatory reason for its action.
Specifically, the Agency stated that this was Complainant’s third
accident in two years, and there was no outside cause for the accident.
Ex. 3.
Complainant counters that the Agency’s reasons are merely a
pretext for discrimination because the accident was not her fault.
While it may be true that Complainant’s accident was not her fault,
Complainant does not offer any evidence that would raise a question
as to whether the Agency’s decision to suspend her was motivated
by a discriminatory animus. Furthermore, the record reveals that the
Agency has also suspended other employees outside of Complainant’s
protected class for accidents on the job. Ex 13. Complainant argues
that these employees were at fault in their accidents, while she was not.
However, the Commission will not second guess the Agency's business
decision unless Complainant can establish that the Agency was prompted
by discriminatory animus. See Chavez v. U.S. Postal Serv., EEOC Appeal
No. 0120055246 (Jan. 5, 2007); see also Carson v. Bethlehem Steel Corp.,
82 F.3d 157, 159 (7th Cir. 1982) (noting that “the question is not
whether the employer made the best, or even a sound, business decision;
it is whether the real reason [was discriminatory]”). Thus, the
Commission concludes that Complainant failed to provide any evidence
from which it could be established that the Agency's explanations were
a pretext for discrimination with respect to claim 1.
Claim 2
Complainant further claims that the Agency subjected her to unlawful
discrimination and failed to provide her with reasonable accommodations
when they had her work over eight hours per day. However, Complainant
does not point to any specific date in which she had to work over eight
hours, nor does she offer any evidence to support this allegation.
A review of Complainant’s time records reveals that from September
4, 2007, to June 20, 2008, Complainant worked a few minutes past eight
hours on several occasions, on at least one occasion because she clocked
in early. Ex. 14. We do not find this to be a material departure from
her medical restriction of an eight-hour workday. Consequently, we find
that Complainant failed to offer any evidence from which she can prove
discrimination for claim 2.
Claims 3-4
Complainant also fails to raise a question of material fact regarding
her claims that she worked for six days in a row during the week of June
16, 2008, was forced to work on June 18, 2008, and was threatened with
discipline if she did not report to work on that day. The Agency concedes
that Complainant was required to work each day that week, including on
June 18, 2008. Aff. G, pp. 4-5; Agency’s Motion, pp. 5-6. However,
the record reveals that Complainant was a Part-Time Flexible employee,
and according to the collective bargaining agreement, such employees
may be called upon to work flexible hours, without a guaranteed day off.
Ex. 21. Furthermore, Complainant provides no evidence suggesting that
the Agency was motivated by discriminatory animus regarding this personnel
decision, such as evidence that a similarly-situated employee outside of
her protected class was treated more favorably in respect to this matter.
See Chavez, EEOC Appeal No. 0120055246; see also Carson, 82 F.3d at 159.
Accordingly, we find that Complainant failed to raise a question of
material fact as to whether the Agency acted with a discriminatory animus
when it required her to work the week of June 16, 2008.
Claim 5
Complainant contends that the Agency subjected her to unlawful
discrimination when she did not receive a workers’ compensation form
when she asked for one. However, Complainant does not specify how she
was aggrieved by the delay in obtaining a workers’ compensation form.
Complainant received a workers’ compensation from her Union Steward
on February 3, 2009, and did not file a workers’ compensation claim
until March, 28, 2009. Attach. to Agency’s Motion. The regulation
set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part,
that a complaint should be dismissed for a failure to state a claim.
The Commission finds that claim 5 fails to state a claim under EEOC
regulations because Complainant failed to show that she suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Accordingly, we find that the
AJ properly dismissed claim 5.
Claim 6
An allegation pertaining to the denial of official time to work on an
EEO claim is treated separately than other claims of discrimination.
EEOC Regulation 29 C.F.R. § 1614.605(b) provides, in relevant part,
that “if the Complainant is an employee of the Agency, he or she
shall have a reasonable amount of official time, if otherwise on duty,
to prepare the complaint and to respond to the Agency and the EEOC
requests for information.” A determination of whether the action
was motivated by a discriminatory animus is unnecessary to succeed in
a claim of denial of official time. Bryant v. Dep’t of Treasury,
EEOC Appeal No. 0120065274 (Feb. 25, 2009) citing Edwards v. U.S. Postal
Serv., EEOC Request No. 05960179 (Dec. 23, 1996). The Commission has
the authority to remedy a violation of 29 C.F.R. § 1614.605 without a
finding of discrimination. Id.
Nevertheless, in this case, Complainant failed to raise a question
of material fact as to whether she was denied official time to work
on her EEO complaint. The record reflects that in January 2009,
Complainant requested to see her Union Steward regarding the delay
in obtaining a workers’ compensation form and the steward was not
immediately available. Attach. to Agency’s Motion. A request to see
a Union Steward over a workers’ compensation form is not related to
Complainant’s EEO activity. Complainant offers no evidence that she
was denied time to work on an official EEO claim. Consequently, we find
that the AJ properly found that Complainant was not denied official time
in regard to claim 6.
Complainant’s Other Contentions on Appeal
We note that the AJ’s decision stated that Complainant did not file
a Brief in Opposition to the Agency’s Motion. Complainant contends
that she filed a Brief in Opposition to the Agency’s Motion, and
forwards a copy of the Brief on appeal. Complainant maintains that
this judicial oversight is sufficient to remand the case for a hearing.
The Agency counters that the Brief was in response to a different Motion,
and offers the fact that an incorrect EEOC number is cited in the Brief.
Despite citing the wrong EEOC number, the Commission notes that
Complainant’s Brief is in reference to the correct Motion, as reflected
in references to arguments from the Agency’s Motion. Despite this,
we also note that there is no proof in the record that Complainant’s
Brief was submitted to the AJ.
Complainant also argues that the AJ misstated several facts. Upon review,
the Commission notes that the AJ misstated two facts: first, that
Exhibit 2 showed that a different management official was implicated in
Complainant’s prior EEO activity, although the reverse is indicated
by the Exhibit; second, that Affidavit B indicated that Complainant
received a workers’ compensation form when she requested one, instead
of citing to supplemental Affidavit B. Ex. 2; Aff. B; Supplemental
Aff. B. Neither of these facts are material to the outcome of the case.
We therefore determine that the misstatements constitute harmless error.
Complainant has not adduced sufficient evidence from which to conclude
that unlawful discrimination occurred as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order.
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 (Nov.r 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 4, 2011
Date
1 The Commission considers the term “Hispanic” to denote a national
origin rather than a race.
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0120093746
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013