0120070959
03-25-2008
Sandra H. Hall, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra H. Hall,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070959
Hearing No. 430-2006-00050X
Agency No. 1C-241-0018-05
DECISION
On December 9, 2006, complainant filed an appeal from the agency's
November 9, 2006, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission affirms
the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a part-time flexible mail processing clerk at the agency's Processing
and Distribution Center in Roanoke, Virginia. Complainant requested
two transfers to two separate positions. In May 2005, complainant
requested a transfer to a mail handler position. In September 2005,
complainant also requested a reassignment to a part-time flexible
marking clerk automation position at the Roanoke, Virginia Post Office.
Both requests were denied. On August 16, 2005, complainant filed an EEO
complaint alleging that she was discriminated against on the bases of race
(Caucasian), her sex, disability (hired under Mental Illness Code 91),
and age (D.O.B. 11/05/57) when (1) on June 8, 2005, she was informed
that her request to be reassigned to the Mailhandler Craft was denied
due to an unacceptable attendance record.
Complainant amended her complaint to further allege that she was
discriminated against on the bases of race (Caucasian), her sex,
disability (hired Under Mental Illness Code 91), and age (D.O.B. 11/05/57)
when (2) on October 27, 2005, her request to be reassigned to the
Mailhandler Craft at the Appalachian District was denied.
At the conclusion of the investigation, complainant was provided 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 October 3, 2006 motion for a decision
without a hearing and issued a decision without a hearing on October
24, 2006. Specifically, the AJ adopted the facts and the law as set
out by the agency's motion. The AJ found that the agency articulated
legitimate, nondiscriminatory reasons for not granting either of
complainant's reassignment requests. The AJ found that two different
managers separately made the decision to deny complainant's requests
based on complainant's poor attendance, unacceptable history of workplace
accidents, and recent discipline in her personnel file. The AJ further
found that complainant failed to show that the reasons proffered by
the agency were a pretext for discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
On appeal, complainant argues that the investigation was incomplete since
the investigator failed to address all the issues raised by complainant.
Further, complainant argues that she is a qualified individual with
a disability. Complainant contends that the agency's consideration
of her Family Medical Leave Act (FMLA) leave usage in denying the
reassignments she requested is a violation of the Rehabilitation Act.
Complainant argues that an arbitrator found in favor of complainant
due to the agency's poor record keeping. Complainant further contends
that her performance record was "grossly misstated and distorted by
management officials and the investigator accepted this information."
Complainant additionally argues that as a result of a last chance
agreement, management created a position for another employee but failed
to do so for her. Finally, complainant argues the investigator improperly
failed to include evidence that the agency had an affirmative action plan
for disabled employees. The agency requests that we affirm its FAD.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.B. (November 9, 1999). 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. Department of Defense, 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).
We find that the AJ appropriately issued a decision without a hearing
since the record is sufficiently complete. Although complainant contends
that the record is incomplete, we find that the record is sufficiently
developed. Complainant argues on appeal that the investigator failed
to include the agency's policy of affirmative employment; however,
the Commission does not find that this omission is material to the case
at hand. Further, the record reveals that complainant received ample
notice of the possibility of a decision without a hearing being issued
when she received the agency's motion; the agency's motion contained a
comprehensive statement of undisputed material facts; complainant had
the motion and did respond; and the opportunity for discovery existed.
Preliminarily, we note that the AJ erred in adopting the facts contained
in the agency's motion for a decision without a hearing. When issuing
a decision without a hearing, the AJ should consider the facts in
the light most favorable to complainant. Anderson, 477 U.S. at 255.
Nevertheless, we find that even taking the facts in the light most
favorable to complainant, she failed to establish that genuine issues
of material fact exists such that a hearing was warranted.
The record in the light most favorable to complainant reveals that
complainant requested a transfer which was denied. Complainant received
a letter dated June 7, 2005, stating that her request was denied due
to her unacceptable attendance record. In a letter dated October 27,
2005, complainant was informed that her second request for reassignment
was denied due to her unacceptable attendance record, work performance,
and safety record.
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).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
We find that agency articulated nondiscriminatory reasons for its actions.
With regard to claim (1), the Acting Plant Manager (APM) denied
complainant's transfer request after reviewing relevant documents.
The APM considered "complainant's attendance record (complainant at
that time only had 10.74 hours of sick leave), industrial accidents
(complainant had 7 accidents from August, 1997, to time of review),
the supervisor's evaluation (not recommended), and disciplinary record
(2 letters of warning)." APM Affidavit at 1. The APM also stated that
he did not consider the complainant's FMLA absences, but had identified
13 unscheduled absences from January 25, 2005 to June 1, 2005, 9 of
which were not FMLA leave. The APM concluded that complainant was not
an acceptable candidate for a transfer since her attendance record was
unacceptable, her accident history was deficient, and she had disciplinary
actions against her.
With regard to claim (2), the Roanoke Postmaster (PM), stated that she
denied complainant's request for a transfer after also considering
complainant's attendance, discipline, and work safety record, which
showed 15 incidents.
We find that complainant failed to put forth any evidence to show that
the agency's proffered reasons for discrimination were a pretext for
discrimination. Complainant argues that the APM and PM's consideration
of her FMLA leave usage is a violation of the Rehabilitation Act, but
adduces no evidence to support the contention that said agency officials
considered her FMLA leave usage. The APM provided in his affidavit that
he did not consider her FMLA leave in determining that her attendance was
a concern. The PM stated that all the factors taken together, including
complainant's discipline and safety record, resulted in her not approving
complainant's request for reassignment. Further, complainant argues
that an arbitrator found, on October 29, 2005, in favor of complainant
due to the agency's poor record keeping of her leave; however, we find
that that decision is not material to whether the APM or PM discriminated
against complainant when they denied her transfer requests, especially
when the arbitrator's determination occurred after the APM and PM denied
her requests. Complainant further contends that her performance record
was "grossly misstated and distorted by management officials and the
investigator accepted this information." However, complainant failed
to put forth any evidence to corroborate her contention. Complainant's
mere assertions are not sufficient to raise issues of material fact to
warrant a hearing. Complainant additionally argues that due to a last
chance agreement, management created a position for another employee
and it failed to do so for her. We find that this allegation fails
to raise any material facts such that a hearing is warranted since the
complainant failed to put forth any evidence to support her contentions
that the other employee was placed in such a reassignment.
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant failed to put forth any evidence to show that a genuine issue
of material fact existed such that a hearing is warranted. Accordingly,
the Commission affirms the agency's FAD adopting the AJ's finding of
no discrimination.
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
___03-25-2008_______________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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