0120130299
03-08-2013
Sandra German-Alba, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Sandra German-Alba,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120130299
Hearing No. 480-2012-00111X
Agency No. 4F-926-0180-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 26, 2012 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Sales, Services/Distribution Associate at the Agency's Santa Ana Processing & Distribution Center (P&DC) in Santa Ana, California. The record reflects that Complainant was also classified as an unassigned regular employee which meant that she could be assigned to work in any appropriate unit.
On November 5, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that since around or during June 2010, she was subjected to harassment and a hostile work environment on the on the bases of sex (female) and age (over 40), but not limited to:
1. she was constantly accused of wrongdoing, her character was slandered, and co-workers were told to spy on her;
2. she was not given the opportunity to supervise;
3. her work schedule was verbally changed;
4. by letter dated June 3, 2010, she was informed that she would be excessed effective August 2, 2010;
5. on June 18, 2010, she was released from the P&DC window section; and
6. on June 22, 2010, she was informed that effective June 26, 2010, she would be detailed to the Anaheim Processing and Distribution facility on Tour 1.
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 12, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In her decision, the AJ dismissed claim 4 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved. The AJ then proceeded to address the instant complaint on the merits, finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of sex and age. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on sex and age. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The AJ noted that in regard to claim 1, Complainant's supervisor stated that the unit had not had a shortage at a similar level since the previous months, and that she would have to report the shortage to management. Specifically, the supervisor stated "I asked my unit employees including [Complainant] to be careful and pay attention when selling stamps, because our unit audit shortage exceed the threshold amount." The AJ further noted that the only evidence Complainant offered in support of her allegation that she was slandered was her statement "I believe [supervisor] give [sic] bad recommendations." The AJ determined that Complainant did not provide any details regarding when the supervisory supposedly made recommendations, to which any such recommendations were made or in what context.
Complainant's further claimed that the supervisor told other employees to spy on her after she started working at the Santa Ana P&DC. The supervisor stated that she suggested that Complainant observe how other window clerks performed their duties "because we do things differently and others to watch her if she needed help - not to spy on her."
Further, the supervisor stated that on one occasion, two clerks complained to her that Complainant was combining her two break periods to take one long break. The supervisor stated that when she heard this, she addressed all the clerks in her unit to remind them that combining breaks into one long break was not permitted.
Regarding claim 2, the AJ noted that on or about June 18, 2010, Complainant was reassigned out of the Santa Ana P&DC. The AJ further noted that approximately one month before her reassignment, Complainant contacted the Manager, Customer Services to express her interest in being assigned to perform temporary supervisory duties. The AJ noted that subsequently, the supervisor told Complainant that the Manager, Customer Services had been trying to reach her. The AJ noted that when Complainant contacted the Manager, Customer Services, he told her that he had wanted to check her availability to perform temporary supervisor duties on a certain date. The AJ noted, however, by the time that Complainant contacted him, the Manager, Customer Services had already located someone else.
In his affidavit, the Manager, Customer Services stated that Complainant "did ask me for an opportunity, but at the time there was no opportunity, she was considered but then she got transferred out of the unit. I am no longer at the unit she is at so it is not my call for bringing her up as a[n] acting supervisor."
Regarding claim 3, the AJ noted that Complainant identified two instances in which her schedule was verbally changed. The AJ noted that in the first instance, Complainant's starting time was moved up by 90 minutes to cover for another clerk who was on vacation. In the second instance, Complainant was assigned to another unit for five days to provide needed support.
Specifically, the AJ noted that during the relevant time Complainant's work schedule was from 11:00 a.m. to 7:00 p.m. The AJ noted that the supervisor changed Complainant's usual schedule to 9:30 a.m. to 6:30 p.m. to substitute for a clerk who was on vacation. The supervisor stated that she changed Complainant's schedule because a named supervisor requested a clerk "to help her unit at N. Grand. Since [Complainant] is unassign[ed] regular, she can work at any unit." The AJ noted that in regard to the second incident, Complainant was assigned to the other unit June 21-25, 2010.
Regarding claims 4 - 6, the AJ noted that by letter dated June 3, 2010, the Operations Support Specialist notified Complainant that her position would be excessed effective August 2, 2010. The notice also stated that the reason for the excess of her position was reduced workload requirements due to declining mail volume at the Santa Ana P&DC. The notice further stated that as part of the excessing process, Complainant could be detailed to a different assignment or facility.
The AJ further noted by letter dated June 16, 2010, Complainant was notified that pursuant to the applicable collective bargaining agreement and due to her status as an unassigned regular employee, she would be detailed to a different facility effective June 26, 2010. On June 22, 2010, Complainant was notified that she would be detailed to the Anaheim P&DC. The record reflects that by letter dated August 9, 2010, Complainant was notified that her detail to the Anaheim P&DC would end effective August 13, 2010 and that she should report back to the Santa Ana P&DC under her former schedule on August 14, 2010.
The Senior Plant Manager stated that Complainant was issued an excessing letter because there were reductions of employees both in the Santa Ana Post Office and Santa Ana P&DC. The Senior Plant Manager stated that while Complainant was not excessed, "some senior employees volunteered in lieu of junior impacted employees." Specifically, the Senior Plan Manager stated "it had happened for the senior volunteer/junior impacted employees on August 14, 2010 and August 28, 2010."
With respect to Complainant's allegation that two named male employees should have been excessed before her, the Senior Plant Manager stated "yes, these employees have been excessed on August 14, 2010."
Complainant, on appeal, argued that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argues that the AJ "made an error because she did not take into account the contradictions and evasiveness as to where the other similarly positioned employees [two named male employees] were located."
Complainant further stated "evasiveness and withholding of facts directly inhibits discovery which then does not allow for a proper case to be built. Discovery obtained with misleading information or lack of correct factual evidence requested is a violation of Complainant's rights. The Agency stopped Complainant from getting correct information."
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.
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation.
The Commission also determines that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's sex or age. We further find that the incidents of harassment identified by Complainant were not sufficiently pervasive or severe to create a hostile work environment. We discern no basis to disturb the AJ's decision without a hearing, finding no discrimination.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.1
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
March 8, 2013
__________________
Date
1 Because we affirm the AJ's finding of no discrimination concerning claim 4 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. failure to state a claim).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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