Shanna D. Sammons, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 17, 2007
0120071631 (E.E.O.C. May. 17, 2007)

0120071631

05-17-2007

Shanna D. Sammons, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Shanna D. Sammons,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071631

Agency No. 4C-290-0050-06

Hearing No. 430-2006-00296X

DECISION

Complainant timely initiated an appeal from the agency's 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. The appeal

is accepted pursuant to 29 C.F.R. � 1614.405(a).

During the relevant time, complainant was employed as a City Letter

Carrier, Q-01, at the agency's Seneca Post Office in Seneca, South

Carolina. The record reflects that in May 2004, as a result of a

confrontation with a customer on her route, complainant commenced a

medical leave from which she never returned to duty. The record further

reflects that on December 31, 2005, complainant requested reassignment

through the agency's online eReassign program as a Sales and Service

Associate at the Westminster, South Carolina Post Office. In April 2006,

after reviewing complainant's request and her work history/attendance,

the Westminster Officer-in-Charge denied her request for reassignment

to his facility. Further, the record reflects that at the time of her

reassignment request, complainant had been in a Leave Without Pay (LWOP)

status for more than eighteen months.

On April 28, 2006, complainant initiated EEO Counselor contact and

filed a formal EEO complaint on June 1, 2006. Therein, complainant

claimed that she was discriminated against on the bases of sex (female)

and in reprisal for prior EEO activity when:

(1) on March 24, 2005, a union steward asked her for sexual favors in

exchange for representation for an EEO complaint;

(2) on December 2, 2005, she received a Medical Separation Letter; and

(3) on April 17, 2006, her ongoing request for reassignment was denied.

On June 14, 2006, the agency issued a partial dismissal. The agency

accepted claim (3) for investigation. The agency dismissed claim (1)

pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds of stating the same

claim pending before or that has been decided by the agency or Commission

(identified as Agency No. 4C-290-0060-05). The agency dismissed claim

(2) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely

EEO Counselor contact.

At the conclusion of the investigation concerning claim (3), complainant

received a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ). The agency thereafter filed

a Motion to Dismiss or in the alternative, an Agency's Motion for a

Decision Without a Hearing.

In its motion, the agency requested that the AJ to issue a decision

without a hearing concerning claim (3), in its favor. The agency

argued that complainant failed to establish a prima facie case of sex

discrimination. Specifically, the agency found that complainant failed to

demonstrate similarly situated employees outside her protected group who

were treated differently under similar circumstances. The agency found,

however, that assuming arguendo complainant established a prima facie

case of sex discrimination, complainant failed to show that management's

articulated reasons for its actions were a pretext for discrimination.

As to the basis of reprisal, the agency argued that complainant failed

to establish a prima facie case of reprisal discrimination because she

failed to establish a casual connection between her protected activity

and the action at issue. The agency further argued that complainant

did not show that management was aware of her prior protected activity.

The record reflects that the Westminster Officer-in-Charge (OIC) stated

that he was the deciding official to deny complainant's reassignment

request based on her irregular attendance. OIC further stated that a

review of complainant's work history indicated that she was not regular

in attendance. OIC stated "we have a system called Mystery Shopper where

the Postal Service assigns people to go to various Post Offices to see how

long people are waiting for assistance. We do not want people to wait

longer than 5 minutes. If I have a Window Clerk that is not regular

in attendance, then the service that we provide will suffer because

of the inability to staff properly." OIC stated "it is an ongoing

policy in the Postal Service that you must be in regular attendance."

OIC stated that even if complainant's attendance had been acceptable,

he would have denied her reassignment request because "we did not have

that position open at that time [emphasis added]."

Further, OIC stated that other than receiving complainant's reassignment

request, he received one reassignment request from a named male employee.

Specifically, OIC stated that the named male employee wanted to be

reassigned to Westminster Post Office as a part-time City Carrier

position and work only one or two days per week. OIC stated that he

denied the named male employee's request because "we could not have met

this schedule." OIC stated that during the relevant time he was not aware

of complainant's prior protected activity. Furthermore, OIC stated that

complainant's sex and prior protected activity were not factors in his

determination to deny her reassignment request.

On January 12 and 16, 2007, the AJ granted the agency's motion for a

decision without a hearing, finding no discrimination concerning claim

(3).1 The AJ concluded that complainant failed to establish a prima

facie case of sex discrimination. The AJ found, however, that assuming

arguendo complainant established a prima facie case of sex discrimination,

complainant failed to show that the agency's articulated reasons for its

actions were a pretext for discrimination. As to the reprisal basis,

the AJ found that complainant failed to establish a prima facie case

of reprisal discrimination because she failed to establish a casual

connection between her protected activity and the action at issue.

The AJ found that complainant did not show that OIC was aware of her

prior protected activity.

On January 16, 2007, the agency issued a final action wherein it

implemented the AJ's decision finding no discrimination concerning claim

(3).

Claim (3)

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.

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima facie

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited

consideration was a factor in the adverse employment action. See

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Once the agency has met its burden, the complainant bears the ultimate

responsibility to persuade the fact finder by a preponderance of the

evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The Commission finds that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Moreover, we find that

complainant has not established that the agency's reasons were a pretext

for discrimination.

The agency's final order implementing the AJ's finding of no

discrimination concerning claim (3) is AFFIRMED.

Claim (1)

Complainant claimed that she was discriminated against on the bases of

sex and in reprisal for prior EEO activity when on March 24, 2005, a

union steward asked her for sexual favors in exchange for representation.

In its June 14, 2006 partial dismissal, the agency dismissed claim (1)

pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds of stating the same

claim that is pending before or that has been decided by the agency or

Commission.

The Commission determines that this matter was previously raised in a

prior EEO complaint identified by the agency in its partial dismissal.

The record reflects that in a prior complaint, identified under Agency

No. 4C-290-0060-05, complainant claimed that she was discriminated

against on the basis of sex when a union representative asked her for

sexual favors in exchange for union representation.2 Therefore, we find

that the agency properly dismissed claim (1) for stating the same claim

raised in complainant's prior complaint.

Claim (2)

Complainant claimed that she was discriminated against on the bases of

sex and in reprisal for prior EEO activity when on December 2, 2005,

she received a Medical Separation Letter. In its June 14, 2006 partial

dismissal, the agency dismissed claim (2) pursuant to 29 C.F.R. �

1614.107(a)(2) on the grounds of untimely EEO Counselor contact.

The agency noted that complainant had engaged in prior protected activity

and was aware of the time limits for initiation of EEO Counselor contact.

The Commission finds that the alleged discriminatory event occurred on

December 2, 2005, but that complainant did not initiate contact with an

EEO Counselor until April 28, 2006, which was beyond the forty-five (45)

day limitation period. On appeal, complainant presented no persuasive

arguments or evidence warranting an extension of the time limit for

initiating EEO Counselor contact. Therefore, we find that the agency

properly dismissed claim (2) on the grounds of untimely EEO Counselor

contact.

Accordingly, the agency's dismissal of claims (1) and (2) is AFFIRMED.

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 17, 2007

__________________

Date

1 The record reflects that on January 16, 2007, the AJ issued an amended

decision stating that she erred in the January 12, 2007 decision that

complainant had not filed a response in opposition to the agency's motion.

The AJ further stated that even after reviewing complainant's opposition

response and the totality of the record evidence, complainant failed to

raise any genuine issues of material fact relevant to claim (3) which

would warrant a hearing.

2 The record reflects that the agency issued a final decision dismissing

Agency No. 4C-290-0060-05. On appeal, the Commission reversed the agency

dismissal and remanded the complaint to the agency for further processing.

Sammons v. USPS, EEOC Appeal No. 01A55105 (December 19, 2005).

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0120071631

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071631

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