0120083396
09-25-2008
Rhonda D. Omberg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rhonda D. Omberg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083396
Agency No. 1G-771-0032-07
Hearing No. 460-2008-00066X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 24, 2008 final action 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.
Complainant alleged that the agency discriminated against her on the
bases of race (Caucasian) and in reprisal for prior EEO activity when:
(1) on June 5, 2007 and in August 2007, she was issued a Letter of
Warning1; and
(2) in June 2007, after she was issued a Letter of Warning, she was
harassed in that a chain of discipline without cause followed, she was
given pre-disciplinary interview on another allegation the same day
she received a Letter of Warning and she has been threatened with being
removed from her position by the supervisor and the Plant Manager.2
Following the investigation into her complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision by summary judgment in favor of the agency. The agency adopted
the AJ's decision in its final order. The instant appeal followed.
The AJ found that, based on the evidence of record, complainant had not
established a prima facie case of discrimination based on either race
or reprisal. In fact, the AJ noted that complainant herself indicated
that management's actions were because of a union grievance and her
past service as a union steward-not because of her race or EEO activity.
The AJ further found that assuming complainant established a prima facie
case, the agency articulated legitimate, non-discriminatory reasons for
its actions. The AJ found that complainant did not deny that she acted
as charged3 in the disciplinary or pre-disciplinary actions, she simply
pleads that her actions should have been excused. However, she did not
produce evidence of other similarly situated employees whose performance
and/or conduct was the same as hers who were not disciplined. Finally,
the AJ concluded that complainant did not prove, by a preponderance of
the evidence, that the agency's proffered reasons for its action were
a pretext for discrimination or retaliation.
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, 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 review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final action,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 25, 2008
Date
1 The record reflects that as a result of two grievances complainant
filed, the Letter of Warning dated June 4, 2007 was reduced to an official
discussion and the Letter of Warning dated July 26, 2007 was resolved in
that it was to be reviewed in six months and if the Letter of Warning
had not been cited in subsequent discipline, it would be removed from
all records and files.
2 The record reflects that on an unspecified date, complainant requested
that her complaint be amended to include claim (2). On October 10,
2007, the agency granted complainant's request to have her complaint
amended to include claim (2).
3 The agency charged that complainant did not prepare the Mail Condition
Report accurately, she posted an inaccurate holiday schedule, and she
refused to escort the postmaster to a mediation.
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0120083396
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083396