0120063468
11-21-2007
Theresa A. Montgomery, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Theresa A. Montgomery,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01200634681
Hearing No. 340-2005-00199X
Agency No. 4F-926-0133-04
DECISION
On May 13, 2006, complainant filed an appeal from the agency's April
13, 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Distribution Window Clerk at the agency's North Long Beach Annex
facility in Long Beach, CA. The record reflects that on or around
March 9, 2004, complainant used the restroom during her pre-lunch,
five minute wash-up break. Complainant alleged that, while she was
in the restroom, a supervisor (Supervisor 1) told complainant that
the facility manager told her to inform complainant that the wash-up
break was not meant to be used to change clothes. Complainant alleged
that Supervisor 1 and the manager repeated this instruction when she
confronted them outside the restroom that day. On March 25, 2004, another
supervisor (Supervisor 2) issued complainant a Letter of Warning (LOW)
for failure to turn in the registry key prior to leaving the facility.
Complainant alleged that another employee was not issued any discipline
by Supervisor 2 even though he left the registry cage open for a weekend.
On March 26, 2004, complainant was issued an LOW by Supervisor 2 for
failure to complete her work duties and immediately report equipment
problems in a timely manner. On March 30, 2004, the acting manager
proposed that complainant's work hours be changed due to office needs.
Complainant's hours were ultimately not changed because another employee's
hours were changed based on seniority.
On April 13, 2004, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of sex (female) and in reprisal
for prior protected EEO activity (arising under Title VII) when:
(1) On March 9 or 11, 2004, Supervisor 1 talked to complainant about
changing clothes during the five minute pre-lunch wash up break;
(2) On March 25 and 26, 2004, LOWs were issued to complainant by
Supervisor 2; and
(3) On March 30, 2004, complainant's hours were proposed/designated to
change.
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 the complainant's objections, the AJ assigned
to the case granted the agency's January 30, 2006 motion for a decision
without a hearing and issued a decision without a hearing on April 3,
2006. The AJ found that complainant failed to establish a prima facie
case of sex discrimination or retaliation and that she failed to establish
that the agency's legitimate, nondiscriminatory reasons for its actions
were a pretext for unlawful 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.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ and agency erred in finding
no discrimination and repeats arguments made below. Complainant argues
that her supervisors were aware of her prior EEO activity, that she was
punished unfairly in retaliation for her EEO activity, and that she was
subjected to a hostile work environment. In response to the appeal,
the agency requests that we affirm the agency's final action.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 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 Chapter 9,
� VI.A. (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").
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).
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of sex discrimination
by demonstrating: (1) that she is a member of a protected group; (2)
that she is similarly situated to employees outside of her protected
group; and (3) that she was treated differently than those employees.
Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d 864, 865
(6th Cir. 1975).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt, and Coffman
v. Department of Veterans Affairs, EEOC Request No. 05960473 (November
20, 1997), a complainant may establish a prima facie case of reprisal
by showing that: (1) she engaged in a protected activity; (2) the agency
was aware of the protected activity; (3) subsequently, she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
A nexus may be shown by evidence that the adverse treatment followed
the protected activity within such a period of time and in such manner
that a reprisal motive is inferred. See Clay v. Department of Treasury,
EEOC Appeal No. 01A35231 (January 25, 2005).
Upon review, we concur with the AJ's determination that complainant
failed to establish a prima facie case of sex discrimination.
Complainant failed to provide any evidence from which an inference of
sex discrimination could be established. Additionally, with respect
to claims (1) and (3), complainant did not suffer an adverse action
when Supervisor 1 informed her that she should not change her clothes
during the five minute wash-up break and the facility manager proposed
changing her duty hours. With respect to claim (2), we concur with
the AJ's determination that complainant failed to identify a similarly
situated employee who was treated differently. Complainant argues that
a similarly situated co-worker was not issued discipline for failing
to lock the registry cage while she was issued an LOW on March 25,
2004 for taking the registry key home. However, the record reflects
that complainant was not similarly situated because the co-worker was
acting in a supervisory capacity, and he was not accused of repeatedly
taking the key home. Contrary to complainant's contention, the record
reflects that the co-worker was issued an official discussion for his
transgression in March 2004. Complainant did not identify a similarly
situated employee regarding the March 26, 2004 LOW.
We also find that the AJ correctly determined that complainant failed
to establish a prima facie case of reprisal. While we acknowledge that
an official discussion, issuance of LOWs, or a proposed change in duty
hours could reasonably deter the complainant or others from engaging
in a protected activity, we find that complainant failed to establish
a causal nexus between her prior protected activity in 2001 and the
alleged retaliatory conduct in 2004. The temporal proximity between
the protected activity and the alleged conduct is simply insufficient
to establish a causal nexus. Moreover, complainant failed to produce
any evidence suggesting that the agency officials' actions were
motivated by retaliatory animus. There was no evidence in the record
that Supervisor 2, who issued the LOW's at issue in claim (2), was even
aware of complainant's prior EEO activity. Therefore, complainant failed
to introduce persuasive evidence sufficient to raise an inference that
reprisal more likely than not motivated the agency's actions.
Finally, to the extent that complainant is alleging that she was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A prima facie case of hostile work environment is precluded
based on our finding that complainant failed to establish that any of
the actions taken by the agency were motivated by discriminatory animus
or retaliatory motive. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000). We note that complainant
indicates in her affidavit that she felt the agency was subjecting her
to a hostile work environment because she had filed a grievance with the
union, but participating in a union grievance process is not protected
activity under Title VII. See 29 C.F.R. �1614.101(b).
CONCLUSION
The Commission finds that the issuance of a decision without a hearing was
appropriate in this case because no genuine issue of material fact exists.
We note that complainant failed to present evidence that any of the
agency's actions were motivated by discriminatory animus towards her.
We discern no basis to disturb the AJ's decision. Accordingly, after
a careful review of the record, including arguments and evidence not
specifically addressed in the decision, the agency's final order is
AFFIRMED.
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
November 21, 2007
Date
1 Due to a new data system, this case has been re-designated with the
above-referenced appeal number.
??
??
??
??
2
0120063468
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120063468