01a51616
05-05-2005
Rita K. Perkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Rita K. Perkins v. United States Postal Service
01A51616
May 5, 2005
.
Rita K. Perkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A51616
Agency No. 1E-671-0001-03
Hearing No. 280-2004-00226X
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that, during the relevant period, complainant was
employed as a PS-04, Mail Handler at the agency's General Mail Facility in
Wichita, Kansas. Complainant filed a formal EEO complaint on November 30,
2002, alleging that the agency subjected her to a hostile work environment
when it discriminated against her on the bases of sex (female) and in
reprisal for prior EEO activity when:
(1) in June 2002, a supervisor (S1) made demeaning remarks to her;
she was denied a schedule change; and,
on June 13, 2003, she was denied leave under the Family Medical Leave
Act (FMLA).
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant was not an aggrieved employee.
Specifically, the AJ found that complainant did not suffer a present harm
or loss with respect to a term, condition, or privilege of employment.
The AJ noted that, although S1 referred to complainant as a �big
pussy� and referred to a co-worker as a �dock b_tch� in her presence,
the two incidents were isolated. As a result, the AJ determined that
complainant's work environment could not reasonably be perceived as
hostile or abusive.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends, among other things, that the AJ did not address
the issues that were in dispute. In particular, complainant noted that
she was denied FMLA leave on June 13, 2003, and that she was required
to bring in documentation for her illness, unlike male employees.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
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, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider a decision without a hearing
only upon a determination that the record has been adequately developed
for summary disposition.
The Administrative Judge concluded that other than complainant's own
subjective belief that she was discriminated against, she presented no
evidence from which a reasonable fact-finder could conclude that the
agency subjected her to a hostile work environment. The Administrative
Judge thus determined that a hearing was not required because there were
no genuine issues of material fact in dispute.
The Commission agrees with the FAD's conclusion that complainant
did not establish that she was discriminated against on the basis of
sex or that she was retaliated against for prior protected activity.
Specifically, the record evidence does not establish that complainant
was treated less favorably than individuals similarly situated, but
not within her protected groups. The record evidence also shows that
when complainant informed the agency about the demeaning remarks, S1's
supervisor investigated the matter and gave him an official discussion
and sent him to two sexual harassment classes. In regard to complainant's
leave request under the FMLA, there is no evidence that she was denied the
leave she requested. In fact, the record establishes that complainant was
granted four hours of FMLA leave. Finally, in regard to complainant's
request for a schedule change, there is no evidence that such a request
was ever submitted.
Based on the foregoing and under the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), complainant's claim of
hostile work environment must fail. See Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6 (March 8, 1994). A prima facie
case of hostile work environment is precluded based on our finding
that complainant failed to establish that any of the actions taken by
the agency were motivated by sex or retaliation. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
Based on the foregoing, and 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 order, 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 discrimination occurred.
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
May 5, 2005
__________________
Date