0120103647
02-24-2011
Noreen H. Lee, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Noreen H. Lee,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120103647
Hearing No. 550-2010-00012X
Agency No. 4F-940-0070-09
DECISION
On September 3, 2010, Complainant filed an appeal from the Agency's August
26, 2010, 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. For the following reasons, the Commission AFFIRMS the
Agency's final order.
BACKGROUND
At the time of the incident giving rise to the first claim in this
complaint, Complainant worked as a Full-Time Sales Services/Distribution
Associate at the Agency's work facility in San Francisco, California.
AJ's Decision at 7. At the time of the event giving rise to the
second claim in the complaint, Complainant worked as a Part-Time Sales
Services/Distribution Associate. Id. at 8.
On June 16, 2009, Complainant filed an EEO complaint wherein she claimed
that the Agency discriminated against her on the bases of national origin
(Chinese) and race (Asian) when on February 10, 2009, she was issued a
Notice of Suspension of seven days or less. Complainant added the basis
of reprisal for prior EEO activity under Title VII with regard to the
claim that since July 6, 2009, her hours have been reduced.
At the conclusion of the investigation, the Agency provided Complainant
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 Decision Without
Hearing and issued a decision without a hearing on August 19, 2010.
The record reveals with respect to claim (1) that Complainant was issued
a Notice of Suspension of seven days or less for unsatisfactory job
performance. Id. at 8. On January 9, 2009, Complainant had a lunch time
from 1:35 p.m. - 2:35 p.m., but she failed to return to her assignment at
her scheduled time as her next transaction was not until 3:02 p.m. Id.
Complainant could not explain why she was not on schedule but stated
that she saw a long line and chose to work in the back office. Id.
The AJ found that Complainant failed to show that the Agency's reason
for the Notice of Suspension was pretext. Id. at 9.
With regard to claim (2), the AJ noted that on July 4, 2009, Complainant
chose to switch to a part-time regular clerk status. Id. at 10.
Complainant's hours were reduced from a 40 hour week. The AJ observed
that under the collective bargaining agreement, part-time employees may
be scheduled for less than 40 hours per week and less than eight hours
per day. Id. The AJ found that Complainant failed to establish that
any similarly situated employees outside of her protected class was
treated more favorably. Id. According to the AJ, a comparison cited
by Complainant who had less of a reduction in hours was not similarly
situated given that she did not work at the same facility and did not
report to the same supervisor. Id. at 11. The AJ further stated that
this comparison was a full-time sales service associate and had greater
seniority than Complainant. Id. The AJ found that Complainant failed
to show that her reduction in hours was attributable to her race or
national origin. With regard to her reprisal claim, the AJ found that
Complainant did not suffer an adverse action given that she had chosen
to switch from a full-time status to being a part-time regular. Id.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
On appeal, Complainant contends that subsequent to filing her complaint
concerning the Notice of Suspension, the Agency retaliated against
her by reducing her work hours so sharply that she had to file for
unemployment compensation. Complainant maintains that she was able to
identify similarly situated employees, junior to her and working in the
same installation and with the same skills, who continued to be assigned
full-time or nearly full-time work and were not placed in her situation.
Complainant argues that she presented evidence of pretext and that the
AJ did not consider the facts in the light most favorable to her prior
to finding in favor of the Agency without a hearing.
ANALYSIS AND FINDINGS
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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
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). Complainant
must initially 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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
We shall assume, arguendo, that Complainant has set forth a prima
facie case under each of the alleged bases with regard to both claims.
We find that the Agency articulated legitimate, nondiscriminatory reasons
with regard to each of the actions referenced in the claims. As for
claim (1), the Agency stated that it issued the Notice of Suspension to
Complainant because she was 25 minutes late returning from lunch to her
window work station. The Agency stated as to claim (2) that Complainant
chose to transfer from full-time to part-time regular status and that
her work hours were also reduced due to an excess of clerks that were
more senior than her.
Complainant attempts to establish pretext with regard to claim (1)
by citing two comparisons of a different national origin who were
not disciplined even though they left the station unsecure and mail
was not dispatched. The Agency stated that management was not there
at the time these lapses occurred and it acknowledged that it failed
to take corrective action. Investigative Report at 9. However, the
record indicates that a Hispanic individual received a fourteen day
suspension for the same infraction that Complainant committed. Id.
The record further indicates that an African-American employee was issued
a seven day suspension for failure to follow instructions. Id. at 10.
Upon consideration of the record in its entirety, we find that Complainant
has not established that the Agency acted in a discriminatory manner
when it issued her the Notice of Suspension.
As for claim (2), Complainant argues that her work hours were reduced to
four hours per week and that employees who are junior to her and working
under the same manager did not have their work hours and wages reduced
and continue to work full-time. In response to Complainant's contention
that employees junior to her did not have their work hours reduced, the
Manager of Finance asserted that those junior employees did not choose
to become part-time regulars as Complainant did. Id. We observe that
Article 8 of the collective bargaining agreement states in part that
shorter work weeks will, however, exist as needed for part-time regulars.
Id. at 11. Although Complainant experienced a substantial reduction in
her work hours, we do not find that she has established that the Agency's
explanation for the reduction was pretext intended to mask discriminatory
intent.
CONCLUSION
The Agency's determination in its final action that no discrimination
occurred is AFFIRMED.
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
February 24, 2011
__________________
Date
2
0120103647
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103647