0120070023
03-19-2008
Shawn R. Mormon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Shawn R. Mormon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120070023
Hearing No. 370-2005-000532X
Agency No. 4F-940-0025-05
DECISION
On September 22, 2006, complainant filed an appeal from the agency's
August 28, 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is deemed timely and is accepted for the Commission's de novo review
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 modified-duty Mail Handler in the Safety Compliance/Ergonomics
Office at the Postal Processing and Distribution Center in San Francisco,
California. On February 14, 2005, complainant filed an EEO complaint
alleging that she was discriminated against on the bases of race
(African-American), disability (carpal tunnel syndrome)1, and in reprisal
for prior protected EEO activity [arising under the Rehabilitation Act]
when:
1. on October 5, 2004, the Human Resources Manager (H1) violated the
Zero Tolerance Policy by denying complainant the opportunity to work in
a non-hostile and non-intimidating work environment; and
2. on January 20, 2005, complainant was pulled from a detail to the
Inspection Service, EAS-11, that offered upward mobility and promotional
opportunities.
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 January 17, 2006 motion for a decision
without a hearing and issued a decision on August 11, 2006.
In her decision, the AJ first found that complainant alleged that she was
subjected to unlawful discrimination and retaliation when, on October 5,
2004, H1 informed her that any detail to the Retail Unit would have to
be submitted to the Complement Committee for review, and that therefore,
she should report to her normal assignment in the Ergonomics Office
until further notice. The AJ found that complainant did not point to any
comparators who were treated more favorably under similar circumstances.
Further, the AJ found that complainant did not demonstrate that the work
environment under the Manager/Ergonomics Risk Reduction Coordinator
(M1) in the Ergonomics Office was, in fact, hostile or intimidating,
or that M1 was motivated by any unlawful factor.
Addressing issue (2), the AJ found that complainant did not show that any
similarly-situated comparators were afforded more favorable treatment
after reporting to a detail assignment without authorization. The AJ
found that the Plant Manager explained that he denied complainant's
February 4, 2005 request to remain in the detail because: (1) she
had reported to the Inspection Service without authorization; (2)
she had previously reported to the lunch room full-time for two weeks
without permission instead of doing productive work; and (3) she had
continually been moved to different assignments due to her inability to
get along with the supervisors in various units and problems related
to her work performance. The AJ found no evidence of 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 asserts only that numerous factual and legal errors
were committed by the Administrative Judge. She provides no examples.
The agency disagrees and requests that we affirm the final order.
We must 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).
The AJ properly issued a decision without a hearing in this case.
Hostile Work Environment Harassment
Complainant alleges that while working for M1 in the Ergonomics Office,
she was asked to do work that was not in her modified-duty job offer.
Complainant contends that she and M1 had discussed the problems with
their working relationship, and M1 seemed to be unhappy with the fact
that complainant refused to perform certain tasks. She also states that
M1 placed her personal items all over desks and chairs, and that she even
attempted to lock complainant out of the computer by locking it with her
log-in on the screen. Complainant also states that at some point, M1
would no longer allow her to return to the Office. Complainant asserts
that the environment became hostile for her once she no longer agreed
to do the work that M1 was being paid to do. She states that she was
concerned about her own personal health and safety and therefore, she
asked to be removed from this environment.
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2)
the harassment was based on her membership in a protected class.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). The evidence
in the record is insufficient to support a finding that management's
actions towards complainant were based on either her race, disability
or prior EEO activity. See EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
Disparate Treatment
The allocation of burdens and order of presentation of proof in a
Title VII and Rehabilitation Act case alleging disparate treatment
discrimination is a three step procedure: complainant has the initial
burden of proving, by a preponderance of the evidence, a prima facie case
of discrimination; the burden then shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its challenged action; and
complainant must then prove, by a preponderance of the evidence, that
the legitimate reason offered by the employer was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
As to both issues (1) and (2), we assume arguendo that complainant can
establish a prima facie case of discrimination. The agency has provided
legitimate, nondiscriminatory reasons for its challenged actions; and
complainant has not proved, by a preponderance of the evidence, that the
legitimate reasons offered by the employer were not its true reasons,
but were pretexts for discrimination.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.2 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
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
March 19, 2008
__________________
Date
1 In this decision, we have assumed arguendo that complainant is disabled
within the meaning of the Rehabilitation Act.
2 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120070023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036