0120093236
03-07-2011
Sherry V. Shaw, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Sherry V. Shaw,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120093236
Hearing No. 490-2007-00148X
Agency No. 1H-381-0002-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 11, 2009 final action concerning an 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.
BACKGROUND
During the period at issue, Complainant was employed as a Mail Processing Clerk at the Agency's Jet Cove Annex in Memphis, Tennessee.
On January 3, 2007, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment in reprisal for prior EEO activity when:
from June 2005 through September 10, 2006, her supervisor spoke to her in a very hostile and intimidating manner, slammed the door in her face, and solicited employees to have her decertified as a shop steward.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 30, 2009, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
The AJ found that the evidence of record gathered during the investigation established the following undisputed facts. Complainant had filed at least seven prior EEO complaints between 1997 and 2004. She was also a union steward in her work area. However, despite this history, Complainant stated that she had a good relationship with her supervisor (S1) until June 2005 when she and S1 had a dispute over a male employee who they disagreed over whether or not he was involved with drugs.
As a result of this disagreement, Complainant accused S1 of trying to destroy her reputation and limit her union activity. Complainant alleged that on September 10, 2006, she requested steward time, but did not receive a response from S1. Complainant alleged that after she notified the Supervisor Distribution Operations (SDO) that S1 did not respond to her request, SDO instructed S1 to respond, but she still failed to sign the request form. Complainant further alleged that while she was talking to S1, S1 "slammed the door in my face very violently. I opened the back door and asked why she slammed the door in my face, she slammed it shut even harder all while [MDO] was observing but not responding." Complainant also accused S1 of soliciting employees to petition the union to have Complainant decertified as a steward.
In his decision, the AJ found no unlawful retaliation had been established. Specifically, the AJ concluded that there was no evidence to suggest that the problems Complainant was having with S1 had any connection to her prior EEO activity. The AJ noted that Complainant, herself, admitted that they had had a good relationship in the past even though she had a long history of filing EEO complaints. In fact, the AJ pointed out, Complainant repeatedly suggested that her problems were related to her union activities.
Moreover, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment. The AJ noted that Complainant alleged that she was subjected by S1 to "outrageous, hostile, retaliatory and threatening behavior." The AJ noted, however, that Complainant did not specify what specific behavior she was referring to other than the door slamming incident and the alleged involvement in the decertification effort.
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.
Complainant has offered no persuasive arguments on appeal to support reversing the AJ's decision to issue a decision without a hearing, or findings on the merits. While Complainant has identified a number of disputes over facts, she has failed to identify any material facts in dispute which require resolution through hearing. Even accepting the facts as presented by Complainant, the AJ correctly determined that the Agency should prevail as a matter of law. There is no evidence to suggest a connection between Complainant's prior EEO activity and the difficulties she allegedly had with S1. Complainant conceded that they had a good relationship for many years despite her history of EEO complaints. Moreover, Complainant repeatedly suggested that the source of their falling out was caused by Complainant's union activities. While this may form the basis of an unfair labor practice charge, it does not establish a violation of the anti-discrimination laws. In addition, even if there was a connection between Complainant's EEO activity and the alleged conflict with S1, the incidents alleged by Complainant, even considered together and assumed to be true, are not sufficiently severe or pervasive to establish a hostile work environment claim.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
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 7, 2011
__________________
Date
2
0120093236
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093236
6
0120093236