0120070981
05-08-2007
Marisol Sandoval, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marisol Sandoval,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070981
Hearing No. 510-2006-00121X
Agency No. 4-H-327-0007-06
DECISION
On December 7, 2006, complainant filed an appeal from the agency's
November 3, 2006, 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final order.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of her national origin ("Creed")1 and sex when,
from October 4, 2005 through October 24, 2005, the agency, through a
responsible management official (RMO), allegedly subjected complainant
to harassment.
BACKGROUND
During the relevant time, complainant worked as a Part Time Flexible
("PTF") Carrier at the Delton, Florida office. Complainant contended
that the RMO humiliated her in front of coworkers, scheduled her for work
later than other coworkers, and did not train her for the overburdened
routes that she was required to deliver. She further maintained that,
on her days off of work, she waited by the telephone for a call from the
RMO, ordering her to report to work. She further averred that the RMO
spoke to her in a "demeaning, arrogant manner" which caused her to feel
"threatened and intimidated." On January 11, 2006, complainant resigned
from her employment with the agency.
On December 14, 2005, complainant filed an EEO complaint on the aforesaid
bases. At the conclusion of the agency's investigation of her complaint,
complainant was provided with a copy of the report of investigation and
notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. Over complainant's
objections, the AJ assigned to the case granted the agency's motion for
a decision without a hearing, and issued a decision on October 18, 2006.
The AJ found that complainant failed to establish a nexus between
the RMO's behavior and complainant's race/national origin or sex.
Furthermore, he determined that, even if the RMO acted in a demeaning
manner towards complainant, the behavior "may evidence poor supervisory
skills." Although complainant argued that a decision without a
hearing should be precluded because the agency failed to respond to her
discovery requests, the AJ found that complainant failed to initiate
discovery within the 20 day period mandated by the Acknowledgement
Order.2 The AJ concluded that complainant failed to establish her
claim of discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. Neither complainant, nor the agency, provided a statement
on appeal.
ANALYSIS AND FINDINGS
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 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").
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. 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).
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Moreover, we find that the AJ properly issued a decision
without a hearing because complainant has failed to show that a genuine
issue of material fact exists. We agree with the AJ's determination that,
even if the RMO acted in a harassing manner toward complainant, the record
is devoid of evidence that discriminatory animus due to complainant's
national origin and/or sex was the reason for her actions. Moreover,
we note that, to the extent that the AJ did not require the agency
to answer complainant's discovery requests, he acted appropriately.
See EEO Management Directive 110, at 7-19 (If a party does not submit
a discovery request to opposing party within the 20 day period ordered
by the AJ, the AJ may determine that the party has waived its right to
pursue discovery.). For the foregoing reason, we concur with the AJ's
determination and find that a decision without a hearing was proper
in this case. Based on a thorough review of the record, we affirm the
agency's final order.
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
___5/08/07________________
Date
1 In her formal complaint, complainant stated that "the basis of
discrimination 'Creed' is referring to what [she] believe[s] is a woman
from Puerto Rico." Although complainant alleged discrimination on the
basis of race, identified as "Creed," the Commission notes that the
basis she identified appears to denote a national origin group rather
than a racial group. Accordingly, we will analyze complainant's claim
as one of national origin discrimination.
2 Complainant received the Acknowledgement Order on or about May 3,
2006, but failed to initiate discovery until on or about June 28, 2006.
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0120070981
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070981