0120091334
04-16-2009
Stella Culpepper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stella Culpepper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091334
Agency No. 1F-946-0078-04
Hearing No. 480-2007-00570X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 24, 2008 final action concerning her equal employment opportunity (EEO) complaint claiming unlawful 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On April 7, 2007, complainant filed a formal complaint. Therein, complainant claimed that the agency discriminated against her on the bases of race (Caucasian), color (white), age (over 40), and in reprisal for prior EEO activity when:
(1) she was subjected to a hostile work environment when she was denied overtime and holiday pay; criticized and humiliated by her manager; denied the right to perform work on her bid; and excluded from lunches provided by management and other perks given to the clerks; and
(2) on August 7, 2007, a Manager notified her that her bid #9152140 would be abolished effective September 7, 2007.1
Following the investigation into her formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). The agency fully implemented the AJ's decision in its final action. The instant appeal followed.
The AJ found that, based on the evidence of record, complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, color, age and retaliation. Specifically, the AJ found that in regard to claim (1), complainant alleged that ever since her supervisor (S1) created a bid for an identified co-worker (CW)'s bid, she was denied overtime and holiday opportunities. However, the AJ noted that a review of the record indicates that CW's bid position was created before S1 became complainant's supervisor; and that when no one responded to the posting, it became a residual bid which was assigned to CW. The AJ further noted that the record reflects that once all of the bid positions in complainant's section were filled, overtime and holiday work was no longer needed. With respect to complainant's harassment claim, the AJ found that complainant did not prove she was subjected to harassment sufficiently severe or pervasive so as to render her work environment hostile.
With respect to complainant's allegation that S1 unlawfully retaliated against her when she notified her that her bid would be abolished (claim (2)), the AJ found that complainant provides no evidence, and there is nothing in the record, that this event was motivated by any unlawful factor or resulted in any adverse employment action. The AJ further found that after filing a successful union grievance, complainant returned to her prior position with no loss of pay or benefits.
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.
On appeal, complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. Specifically, complainant states while the AJ scheduled a pre-hearing conference for January 13, 2008, "I expected to explain/provide the evidence supporting my claims at this time. Instead, she issued summary judgment in favor of the Agency on December 16, 2008." Complainant further states "I do have direct evidence supporting both my injury claim and retaliation claim and I contend [AJ} has denied me this opportunity."
The Commission is unpersuaded by complainant's arguments on appeal. The Commission notes that the AJ's decision without a hearing was predicated upon the AJ's assessment that the record is devoid of contrary evidence, beyond complainant's unsupported speculation, that the creation of a bid position identified in claim (1) was merely a pretext to deny complainant overtime or holiday pay. Regarding the bid position identified in claim (2), the AJ properly determined that the agency's action in this regard was motivated by discriminatory animus, or even resulted in any adverse action taken against complainant. Finally, with regard to the issue of harassment, the AJ again, properly found that the matters addressed herein do not rise to the level of actionable harassment.
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 (M1208)
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 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 (S0408)
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 (Z1008)
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
April 16, 2009
__________________
Date
1 The record reflects that during a March 13, 2008 status conference, an EEOC Administrative Judge granted complainant's request to have her complaint amended by including claim (2).
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0120091334
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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