0120101121
12-16-2010
Tracey L. Clifton, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Tracey L. Clifton,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120101121
Hearing No. 570200700029X
Agency No. 4K220006206
DECISION
On January 11, 2010, Complainant filed an appeal from the Agency's
December 10, 2009, 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. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
On June 29, 2006, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (Caucasian), sex
(female), and color (White) when:
1. On May 2, 2006, her request for "route assistance" was denied.
Complainant further alleges that when she asked why the assistance was
denied, her supervisor responded, "Do you want fries with that shake?" and
said that Complainant needed to learn that saying because she would be
getting fired;
2. When Complainant returned to the station late on May 2, 2006, she
alleges that her supervisor commented that Complainant and another
carrier returned late because "someone saw clothes flying out the back
of the mail truck;"
3. On May 6, 2006, her route was "cased " by another carrier and
when Complainant asked why, her supervisor responded "to get under
[Complainant's] skin;"and
4. On May 15, 2006, Complainant was given a pre-disciplinary interview
(PDI) and a Notice of Proposal to Remove.
BACKGROUND
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. The AJ assigned to the case determined sua
sponte that the complaint did not warrant a hearing and issued a decision
without a hearing on December 3, 2009. 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.
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency's Memorial Annex Post Office facility
in Alexandria, Virginia. Complainant alleges that she was harassed and
subjected to a hostile work environment as identified in claims 1, 2
and 3 above. According to the Agency, Complainant's workload on May 2,
2006 did not warrant assistance based on the Workhour/Workload Report
used to determine the volume of work for the day. The Agency further
indicates that another carrier was needed to case Complainant's mail on
May 6, 2006, in order to process the mail Complainant had left over from
her route. According to the Agency, Complainant routinely left mail
to be processed after the end of her work day. The record indicates
that on May 15, 2006, Complainant was called in for a PDI to discuss her
unsatisfactory performance with regard to distributing mail. The Agency
further indicates that the Agency issued a Notice of Proposal to Remove
based on her poor performance and not based on any discriminatory animus
toward Complainant's protected classes. The record also indicates that
the Agency's proposed removal merged with a Notice of Removal dated May
23, 2006. The Commission notes that where a complaint is filed on a
proposed action and the agency subsequently proceeds with the action,
the action is considered to have merged with the proposal. See Siegel
v. Department of Veterans Affairs, EEOC Request No. 05960568 (October
9, 1997).
CONTENTIONS ON APPEAL
Complainant fails to offer any arguments on appeal regarding the AJ's
finding of no discrimination and the Agency's decision to adopt the
findings of the AJ.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the Agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an
appeal from an Agency's final action shall be based on a de novo review
. . ."); see also Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999) (providing that
an administrative judge's "decision to issue a decision without a hearing
pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This
essentially means that we should look at this case with fresh eyes. In
other words, we are free to accept (if accurate) or reject (if erroneous)
the AJ's, and Agency's, factual conclusions and legal analysis - including
on the ultimate fact of whether intentional discrimination occurred,
and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at 9-15. (explaining that the de novo
standard of review "requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker." and that EEOC "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").
We must first 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 Pettv
v. Dep't of Def., 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).
After a review of the record, the Commission finds that the AJ's issuance
of a decision without a hearing was appropriate. The record has been
adequately developed, Complainant was given notice of the AJ's intention
to issue a decision without a hearing, she was given an opportunity
to respond to the motion, and failed to do so. In addition, the
Commission finds that, even assuming all facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant's favor, as explained
below. Therefore, no genuine issues of material fact exist. Under these
circumstances, the Commission finds that the AJ's issuance of a decision
without a hearing was appropriate.
Disparate Treatment
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby Complainant must first
establish a prima facie case 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. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-804 (1973); Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978);
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(applying the analytical framework described in McDonnell Douglas
to an ADEA disparate treatment claim). The burden then shifts to the
agency to articulate a legitimate, non-discriminatory reason for its
actions. Texas Dep't. of Cmtv. Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, the burden reverts back to the
complainant to demonstrate by a preponderance of the evidence that
the agency's reasons were a pretext for discrimination. At all times,
Complainant retains the burden of persuasion, and it is his obligation
to show by a preponderance of the evidence that the agency acted on the
basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks. 509 U.S. 502
(1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-716(1983).
Assuming arguendo that Complainant has established a prima facie cases
of discrimination based on race, sex and color, the Commission finds
that the Agency has articulated legitimate, non-discriminatory reasons
for its actions. Specifically, the record indicates that Complainant's
workload on May 2, 2006 did not warrant route assistance, consequently,
her request for assistance was appropriately denied. In addition, the
record indicates that another carrier was required to case Complainant's
mail in order to process the mail Complainant routinely left everyday.
Finally, the Agency indicates that Complainant was issued a Notice Removal
dated May 23, 2006 as a result of her poor performance. The discloses
that Complainant had a history of discipline including a 7-day suspension
issued on March 7, 2006 for Unsatisfactory Performance, Failure to Follow
Instructions and Failure to Follow Safe Practices Procedures Resulting
in a Preventable Industrial Accident; as well as a 14-day suspension
issued on April 3, 2006 for Unsatisfactory Performance, Failure to Follow
Instructions and Delay of Mail. The record indicates that Complainant
was removed from the Agency based on her unsatisfactory performance
and not a result of any discriminatory animus toward Complainant's
protected classes. Complainant has failed to provide evidence that
similarly situated individuals were treated more favorably under similar
circumstances.
Hostile Work Environment
To the extent that Complainant alleges the above-mentioned incidents
constitute a discriminatory hostile work environment, the Commission
notes that harassment of an employee that would not occur but for the
employee's race, color, sex, national origin, age, disability, religion
or prior EEO activity is unlawful, if it is sufficiently patterned
or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with
an employee's work performance. See Harris v. Forklift Svs., Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: "Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's
purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant
must show that: (1) she belongs to a statutorily protected class;
(2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the
harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
After a review of the record, the Commission finds that the incidents
alleged do not constitute discriminatory harassment. The Commission
concludes that Complainant did not prove that she was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment and
that she also failed to prove that the Agency's actions were unlawfully
motivated by her protected classes. Even assuming that the alleged
incidents would be sufficiently severe or pervasive to constitute a
hostile work environment, there is insufficient evidence that any of
them were motivated by discriminatory' animus. Accordingly, Complainant
has not shown that she was subjected to a discriminatory hostile work
environment.
CONCLUSION
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 AJ's issuance of a decision without a hearing was
appropriate as Complainant has not identified any material facts in
dispute, and a preponderance of the record evidence does not establish
that 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
December 16, 2010
__________________
Date
2
01-2010-1121
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101121