0120131922
08-08-2013
Ruth D. Crutcher, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Ruth D. Crutcher,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131922
Hearing No. 420-2011-00131
Agency No. 1H-351-0006-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 4, 2013 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a General Expeditor at the Agency's Huntsville Processing and Distribution Facility in Huntsville, Alabama.
On December 23, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
1. on November 10, 2009, she was asked to perform duties on break;
2. on October 10, 2009, she was not assigned overtime;
3. on December 17, 2009, her overtime should have been regular, not "make up;" and
4. from January 1, 2011 to July 31, 2011, she did not receive the overtime opportunities to which she was entitled.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On March 26, 2013, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final action.
In her decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of sex and reprisal discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding claim 1, the AJ noted that Complainant alleged that her former supervisor did not ask a named Expeditor to dispatch a truck to avoid the truck being late, because her former supervisor did not want to lose favor with that Expeditor. Complainant also alleged that the former supervisor was upset with her because of her grievances against her.
The AJ noted that the Manager Distribution Operations (Manager) stated that the former supervisor asked Complainant to come out and dispatch a truck in order to avoid the truck from being late. Specifically, the Manager stated that there is a truck that departs for Birmingham, Alabama "on a nightly basis. The truck departure is normally 23:50; on this night, the mail was late getting out and it was past the dispatch of value. [Complainant] was the only expediter available. [Former supervisor] needed the truck sealed and dispatch to avoid the mail making it connection in Birmingham."
Regarding claim 2, the AJ noted that the record reflects that overtime is assigned on a rotating basis based on the Overtime Desired List, and the need for overtime depends on the mail volume for the night. The AJ noted that during the relevant time, Complainant's off days were Sunday and Monday. The AJ noted that Complainant acknowledged she was on the Overtime Desired List on October 10, 2009. However, the AJ noted that because Complainant did not sign up to work during the holiday time, other employees were scheduled.
The Manager stated that several employees were scheduled for overtime on October 10, 2009. However, Complainant was not scheduled because she did not sign up for work during the Columbus Day holiday time period. Specifically, the Manager stated that at that time the holiday schedule was from October 10, 2009 through October 12, 2009, and Complainant "did not sign up to work during the holiday time period and therefore other employees were scheduled for overtime and the complainant was not schedule[d]."
Regarding claim 3, the AJ noted that Complainant alleged the overtime offered to her on December 17, 2009 was not "make-up" overtime, and was on days when all employees were required to work overtime. Specifically, the AJ noted that Complainant disputed the former supervisor's calculation of bypass overtime hours calculated as part of a December 16, 2009 settlement agreement unrelated to the instant complaint. Complainant did not identify the overtime hours on December 17, 2009 which she believed were not "make-up" overtime.
Further, the AJ noted that the Manager and Plant Manager stated that they were not involved in the decision to offer Complainant overtime on December 17, 2009.
Regarding claim 4, the AJ noted that Complainant was afforded overtime opportunities between January 1, 2011 and July 31, 2011. The AJ also noted that Complainant compared herself to male employees with different jobs and different off days.
Further, the AJ found that Complainant's closest comparator was a named clerk who shared the same off days as Complainant. Specifically, the AJ noted "the difference during the January 1 - July 31 timeframe is that [Comparator] received 17.54 more hours, while the Complainant took 58.74 more hours of leave." The AJ also noted that during the relevant period Complainant declined at least four overtime opportunities while the comparator declined one overtime opportunity.
The Manager stated that Complainant has not been denied overtime, and that she was not treated differently from other employees concerning overtime opportunities. Specifically, the Manager stated that "Saturday is one of the heaviest days for mail volume for both manual mail and register mail. On Saturday night most of the manual mail arrives from Birmingham and is cased for the Monday morning dispatch. The remainder of the mail that comes in on a Sunday Night for Monday morning is not excessive...Because all off day employees work on a Saturday there i[s] no [rotation] to follow. However due the smaller volume of manual on a Sunday night going into Monday fewer people are needed. The complainant has to follow a rotation." The use of the rotation means the complainant will not work every off day. Having two other employees in the rotation means some weeks those employees in the rotation will get to work off days as well. The rotation decided which employee gets to work, not [Manager]."
The record reflects that the timing of the mail differs on Saturday night and Sunday night. Specifically, the Manager stated "mail arrival profile is not the same on Friday night into Saturday morning as the mail arrival profile for Sunday night into Monday morning." The Manager stated that on Saturdays, the mail must be cased an hour before the last truck, and on Mondays, there are two hours before the last truck."
Complainant's asserted that a named male clerk was treated differently than Complainant was treated, because the male clerk was allowed to work every off day on Tuesday and the mail volume was is not different than on a Monday. The Manager stated that the male clerk "has different off days tha[n] [Complainant]. The [male clerk's] off days is Tuesday and Wednesday." The Manager stated that the mail "from the weekend is being processed this night and it to[o] is one of the heavier nights... [Male clerk] is the only off day employee on the list on Monday night for Tuesday there is no [rotation] to follow."
Complainant, on appeal, argued that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argued that the Agency's explanation "were pretexts and they occurred because of her sex, female. The Complainant was required to leave her break to cut a truck's seal. The supervisor passed two co-workers on duty, in order to have Complainant cut the seal. She should have received overtime on the 10/10/09 holiday, and it is documented in a settlement agreement to pay her overtime for the month of October, 2009."
Further, Complainant argued that she was retaliated against for her prior EEO activity when she was "kept segregated from her male friends and was caused to suffer feelings of embarrassment and humiliation. Her supervisor, [former Supervisor] (female), did these things in order to gain favor with the male workers and to cause Complainant to feel worthless. The supervisor's actions were pretexts for unlawful discrimination."
The instant appeal followed.
ANALYSIS AND FINDINGS
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.
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination by summary judgment. Complainant has not identified any material facts in dispute which require resolution through a hearing. The AJ's decision properly summarized the relevant facts established during the investigation, and referenced the appropriate regulations, policies, and laws. Complainant did not prove, by a preponderance of the evidence, that the decisions made here were motivated by discriminatory animus toward Complainant's sex or prior protected activity.
Based on our careful review of the record and consideration of all arguments presented on appeal, the Agency's final action implementing the AJ's decision finding no discrimination 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
August 8, 2013
__________________
Date
2
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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