0120052255
12-17-2007
Yvette C. Square, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Yvette C. Square,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200522551
Agency No. 1F-906-0010-02
Hearing No. 340-2003-03128X
DECISION
Complainant filed an appeal from the agency's final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
Complainant, a Clerk, PS-05, at the agency's World Way Airmail Center in Los Angeles, California, filed a formal EEO complaint on April 20, 2002. Therein, complainant claimed that she was the victim of unlawful employment discrimination on the bases of race (African-American), sex (female), disability (back, knee, carpal tunnel),2 age (D.O.B. 10/01/56), and in reprisal for prior protected EEO activity when:
1. on December 26, 2001, she was denied an opportunity to prepare official documents; she was denied overtime, and she claimed negligence in the agency's retention of official documents on the part of an unnamed individual (on three occasions, the unnamed individual did not return official documents in a timely manner);
2. on January 25, 2002, management failed to provide her with a safe working environment; denied her request for an accommodation; and deprived her of proper seating; and
3. on July 22, 2002, she was subjected to harassment by her supervisor.3
At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing, following submission of an agency Motion for Summary Judgment, finding no discrimination.
In her decision, the AJ determined that the agency properly set forth the undisputed facts and applicable law in its "Motion for a Decision Without a Hearing," incorporated the Motion in her decision, and found no discrimination. The AJ further determined that complainant failed to present any evidence that the agency's articulated reasons were a pretext for discrimination.
Regarding claim 1, the AJ found that complainant's claim of delay in processing workers' compensation claims and/or related insurance documents failed to state a claim, noting that there was no showing of any resulting harm from the alleged delay.
Regarding claim 2, in her affidavit in the investigative report complainant stated that on January 25, 2002, while on temporary assignment to Mailing Primary, agency officials took her chair, identified as a Flat Sorter chair. Complainant stated that this Flat Sorter chair "met the requirements necessary for her back." Complainant stated that when she questioned the chair removal, she was informed that the chair was needed at the Flat Sorter machine. Complainant stated that an agency official provided her with an "old green chair" and that while attempting to adjust it, she hurt her back.
The Manager, Distribution Operation (MDO) stated that on January 25, 2002, complainant was on temporary assignment to the Mailing Primary, and that complainant was using a Flat Sorter chair that was generally assigned to the Flat Sorting Machine. The MDO stated that it is acceptable for the use of these chairs at Mailing Primary, as long as the Flat Sorter Machine was not being used. However, as soon as the Flat Sorter Machine was in use, as was the case in the instant matter, all Flat Sorter chairs needed to be returned to the Flat Sorter Machine. Based on this evidence, the AJ found no support for complainant's claim that management did not provide her with a safe working environment. The AJ further found that complainant's claim that she was denied an accommodation concerning the use of a special chair was not supported by any evidence that the chair was a requested reasonable accommodation "for any known disability."
Regarding claim 3, the AJ found that complainant's claim that she was subjected to harassment by her supervisor fails to state a claim because she failed to prove that she was subjected to actions sufficiently severe or pervasive so as to render her work environment hostile. Regarding the matter of denied overtime, the AJ found that complainant provided no information to suggest that another employee of a different "race/sex/age/physical ability/and or EEO history did receive overtime on that basis."
The agency's final action, dated December 17, 2004, fully implemented the AJ's decision.
On appeal, complainant argues that summary judgment was issued in error in this case because there remain genuine issues of material fact in dispute. In response, the agency requests that the Commission affirm its final action implementing the AJ's finding of no discrimination.
As this is an appeal from an agency decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). 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. 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 when 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 does not sit as a fact finder. Id. 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. A disputed 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, 322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of a case. If a case can only be resolved by weighing conflicting evidence, a hearing is required. 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 judgment. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Department of Justice, EEOC Request No. 05940339 (February 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives complainant of a full and fair investigation of her claims." Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575 (March 26, 1998); see also Peavley v. United States Postal Service, EEOC Request No. 05950628 (October 31, 1996); Chronister v. United States Postal Service, EEOC Request No. 05940578 (April 23, 1995). The hearing process is intended to be an extension of the investigative process, designed to "ensure that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses." See EEOC Management Directive (MD) 110, November 9, 1999, chapter 6, page 6-1; see also 29 C.F.R. � 1614.109(d) and (e).
Upon our review of the record, the Commission determines that the AJ's determination to issue a decision without a hearing, and his finding of no discrimination, was proper and 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
December 17, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the above referenced appeal number.
2 The Commission presumes, for purposes of analysis only and without so finding, that complainant is an individual with a disability.
3 A fair reading of the record reflects that complainant's harassment claim consisted of the following five incidents: her supervisor told a nurse in the medical unit not to see complainant unless she had a PS Form 7020 and the nurse would not see complainant unless she had the form; her supervisor made reference to her timecard being missing from the timecard rack and being charged tardy; her supervisor had something to do with damaging her car and her missing lumbar pillow; her supervisor told the union steward that he could not see her, when in fact, he could see her at 6:00 p.m.; and her supervisor denied her overtime because she was on light duty.
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01A52255
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036