0120122253
10-11-2012
Nicole J. Cumberbatch, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Nicole J. Cumberbatch,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120122253
Hearing No. 430-2011-00336X
Agency No. 4K-280-0057-11
DECISION
On April 1, 2712, Complainant filed an appeal from the Agency's March 29, 2012, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible Carrier at the Agency's Independence Station facility in Charlotte, North Carolina. On March 2, 2011, Complainant's supervisor (Supervisor) issued Complainant a Letter of Warning (LOW) for unsatisfactory work performance. Specifically, he had observed her performing her duties in an unsafe manner while he was on street supervision on February 17, 2011. He indicated that she failed to signal her intention to turn on several occasions; entered an intersection when the traffic light was yellow and failed to clear the intersection before the light turned red; and failing to back her postal vehicle into a parking spot. Despite her claims to the contrary, the Supervisor issued the LOW. The Supervisor then issued Complainant a Seven-day suspension (Suspension) for unsatisfactory work performance on March 31, 2011. The reason for the suspension was Complainant exceeding her expected street time by 46 minutes on March 7, 2011; 111 minutes on March 8, 2011; 55 minutes on March 9, 2011; and 18 minutes on March 24, 2011.
On March 31, 2011, Complainant contacted the EEO Counselor regarding the LOW and the suspension. On April 15, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), and color (Not Specified), when:
1. On March 2, 2011, Complainant was issued a LOW for Unsatisfactory Performance Failure to Perform Your Duties in a Safe Manner;
2. On March 31, 2011, Complainant received a Seven-Day Suspension for Unsatisfactory Work Performance;
The Agency accepted the complaint for investigation. On May 2, 2011, Complainant was issued a Notice of Removal (Removal). As such, Complainant amended her complaint to include the basis of reprisal for the instant complaint when:
3. On May 2, 2011, Complainant was issued the Removal action for Improper Conduct/Unsatisfactory Work Performance. The Removal was reduced to a suspension pursuant to a grievance settlement on July 22, 2011.
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 23, 2012, motion for a decision without a hearing and issued a decision without a hearing on March 21, 2012.
The AJ found that the Agency provided legitimate, nondiscriminatory reason for its actions. The AJ noted that Complainant was subjected to progressive discipline for her performance issues as stated on the LOW, the Suspension and the Removal. The AJ then turned to Complainant to show that the Agency's reasons were pretext for discrimination. Complainant argued that she was targeted for discipline by management. However, the AJ found that Complainant's arguments were vague, conclusory and assertions without support. Based on Complainant's inability to specifically challenge the reasons for the LOW, Suspension and Removal, the AJ concluded that Complainant failed to show that she was subjected to discrimination based on her race, color, sex and/or reprisal.
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. Complainant appealed the final order without specific comment. The Agency asked that the Commission affirm its adoption of the AJ's finding of no discrimination.
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 disputes of material fact.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that management provided legitimate, nondiscriminatory reasons for its disciplinary actions. Management issued the LOW based on Complainant's failure to perform her duties in a safe manner. The LOW noted that during the Supervisor's street observation, he witnessed Complainant engaging in multiple safety infractions including failing to signal her intentions to turn at least 50% of the time; entering an intersection when the light was yellow and not clearing the intersection before the light turned red; and failing to back into a parking spot. The Suspension was issued for Unsatisfactory Work Performance noting that Complainant had exceeded her street time on several occasions in February and March 2011. Finally, management issued the Removal based on Complainant's Improper Conduct. Complainant was charged with falsifying an official government document when requesting overtime as well as her continued work performance issues with extended street time and her unsafe driving. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the LOW, Suspension and the Removal.
We turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Complainant indicated that management was "coming out after" her. She also stated that she did her work the same way every day. She also argued without providing support evidence that management falsified documents to support the disciplinary actions and that management treated employees within her protected groups poorly. As noted, Complainant provided these assertions without support. We find that this is not sufficient to show that the Agency's reasons were pretext for discrimination based on her race, sex, color or retaliation.
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 order implementing 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
October 11, 2012
__________________
Date
2
0120122253
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122253