0120131823
09-18-2013
Sheilla E. Brown, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Sheilla E. Brown,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120131823
Hearing No. 480-2012-00628X
Agency No. 1E891000112
DECISION
On April 9, 2013, Complainant filed an appeal from the Agency's March 7, 2013, 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, The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee at the Agency's James Brown General Mail facility in Las Vegas, Nevada.
On March 14, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female when she was issued a Notice of Separation on November 8, 2011.
The Agency accepted the complaint and conducted an investigation. The investigation revealed that Complainant worked for the Agency as a casual employee from December 2010 through July 2011 at the Agency's facility in Las Vegas, Nevada. Complainant was re-hired by the Agency on August 4, 2011, in the capacity of Postal Support Employee - Tractor Trailer Operator, PSE08/A.
On November 8, 2011, Complainant was terminated from her position during her probationary period charged with falsifying her application for employment. The record shows that in her application for employment dated June 10, 2011, Complainant stated that she voluntarily resigned from employment with a named employer, and checked the "no" box when asked on the application if she had ever been fired from any job for any reason. The online application also included a certification which stated, "I certify that all of the statements made in this application are true, complete, and correct to the best of my knowledge and belief and are in good faith." Complainant signed the certification. The application also stated, "A false or dishonest answer to any question in this application may be grounds for not employing you or for dismissing you after you begin work, and may be punishable by fine or imprisonment (US Code, Title 18, Sec. 1001). All information you give will be considered in reviewing your application and is subject to investigation."
On September 6, 2011, a former employer disclosed to the Agency that Complainant had been discharged from their employment for unfavorable conduct, interception of company funds and was found by the former employer to be untrustworthy. The former employer also advised that Complainant was ineligible for rehire. Thereafter, on November 4, 2011, Complainant met with her manager regarding the discrepancy in her application certification with respect to her previous employment. On November 8, 2011, Complainant was verbally notified that her employment with the Agency was terminated for falsifying her application.
At the conclusion of the investigation, the Agency provided Complainant 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. When the Complainant did not object, the AJ assigned to the case granted the Agency's October 15, 2012, motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on February 27, 2013.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no identified disputes of material fact.
According to the Agency, Complainant falsified her application for employment when she failed to disclose that she was terminated from a prior place of employment after she took money from a customer without prior authorization from her employer. The former employer reported to the Agency that Complainant's' conduct made her untrustworthy and ineligible for re-hire. Complainant contends, however, that the former employer misrepresented the facts of her interaction with the employer and indicated further that she was never employed by this employer. In fact, Complainant contends that she was a company owner and operator with a contractual relationship with the former employer. As such, Complainant contends, she was not fired from employment, but rather ended a contractual relationship.
The AJ in this matter found that the Agency articulated legitimate, non-discriminatory reasons for its decision to terminate Complainant from employment. Specifically, the AJ found that in response to Complainant's background check, the Agency contacted an individual who Complainant herself listed as her former employer. When the Agency learned that Complainant had been discharged from employment for her conduct and was found to be untrustworthy, the Agency properly concluded that Complainant had provided a false response on her application, resulting in her termination. Upon review, we find that the AJ's decision to issue a summary judgment decision in favor of the Agency was proper. In reaching this decision, we are not persuaded by Complainant's statement on appeal that the Agency should disregard the negative reference from the former employer because Complainant worked for them as an independent contractor.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action adopting the AJ's finding of no discrimination.
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
September 18, 2013
__________________
Date
2
0120131823
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131823