Just wanted to make clear, that “symbols of terror” and racist notes, are not a guarantee that the AJ will see this as a discrimination.
Joan Daughtry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal No. 01200608881
Agency No. 1F946006203
Hearing No. 370-2005-00121X
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant’s
appeal from the agency’s September 30, 2005 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. Complainant
alleged that the agency discriminated against her on the bases of race
(African-American), sex (female), disability (emotional distress), and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when: (1) on February 27, 2003 and March 6, 2003,
she was subjected to hate crimes in the work place for which management
failed to take appropriate corrective action; (2) on March 5, 2003, she
was issued a Letter of Warning for Unsatisfactory Conduct/Obscene Gesture;
(3) on March 14, 2003, complainant’s supervisor (S1) sent her a letter
threatening her with removal because of her absence and hospitalization
following the alleged hate crimes; (4) by letters dated April 1 and
April 2, 2003, the Labor Relations Manager and a Postal Inspector denied
copies of reports regarding the alleged hate crimes which she needed for
the processing of her EEO complaint, workers’ compensation claims and
other matters; (5) on October 25, 2002, complainant was issued a Letter
of Warning charging her with Irregular Attendance/Unscheduled Absences;
and (6) on January 27, 2004, complainant received a letter from an Injury
Compensation Specialist stating that she must report to work on February
2, 2004, at the Richmond Bulk Mail Center in violation of her doctor’s
restrictions and as detailed in her unsigned/undated attachment to her
February 13, 2004 letter.2
We must first determine whether it was appropriate for the Administrative
Judge (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 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).
The courts have been clear that summary judgment is not to be used as
a “trial by affidavit.” Redmand 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).
The AJ’s decision set out the following undisputed facts:
At the relevant time period, complainant was employed as a full-time
Mail Handler at the Oakland Processing and Distribution Center (P&DC).
Complainant had filed a previous EEO complaint in 1994. S1 became
complainant’s supervisor in September 2002. S1 first learned of the
1994 EEO activity sometime after April 2, 2003 from the EEO investigator
assigned to this case. Complainant contacted an EEO counselor in this
case on April 2, 2003. The Letter of Warning dated October 25, 2002
(issue 5), was issued to complainant more than five months before the
complainant contacted an EEO counselor.
On February 27, 2003, complainant found a mail routing slip in her work
area on which were written the words “Racist Pig!” The slip was taped
to the rear wall of the cage that complainant used as a writing area.
Complainant did not know who had left the note. Although complainant
thought that she was the target of the note, other employees also
worked in this area and she had not been threatened or confronted
by any other employee in the work place. S1 immediately contacted
the Postal Inspection Service when complainant showed her the note.
A Postal Inspector prepared an Incident Report on February 28, 2003,
describing the incident and witness accounts and noting that no one,
including the complainant, had witnessed anyone placing the note in the
area or knew who might have done so.
On March 5, 2003, complainant was issued a Letter of Warning for
Unsatisfactory Conduct/Obscene Gesture by S1 pertaining to a confrontation
complainant had with a co-worker on February 26, 2003, at the hot mail
cutting ring in which the supervisor and another employee had witnessed
complainant angrily calling the co-worker a “liar and chump” and giving
him the “middle finger” sign. Later that night another employee reported
to S1 that complainant had used profanity (“you guys are full of sh_t”)
to her co-workers.
On March 6, 2003, complainant returned to her work area to find an object
she described as a “noose” hanging from a general purpose container (GPC)
in her work unit.3 S1 called the Postal Inspection Service. A Postal
Inspection Service Officer (PO) came to the area, took statements from the
employees, and took photos of the object that he described as “made out of
aluminum foil with strapping tie made into a noose.”4 On March 7, 2003,
the Senior Manager of Distribution Operations (SM) conducted a stand-up
talk to inform all employees on Tour 3 that conduct such as hanging
the noose, racist notes, and similar activities was not acceptable and
that any employee found responsible for such activities would be held
accountable, up to and including removal. Complainant went home after
discovering the noose on March 6, 2003.
On March 10, 2003, SM received a phone call from complainant’s mother
stating that complainant was hospitalized due to stress. On March 12,
2003, S1 sent complainant a CA-2 (workers’ compensation claim form) as
she had requested with instructions on completing the form and including
medical documentation. Having received no medical documentation from
complainant during her absence since March 6, 2003, S1 sent complainant
a letter on March 14, 2003, stating that she must provide acceptable
documentation of her absence from work or risk being charged with Absence
without Official Leave (AWOL) and subject to removal.
By letter of March 28, 2003, complainant asked for copies of any
reports concerning the “noose” incident of March 6, 2003. On April 1,
2003, the Manager of Labors Relations denied complainant’s request,
informing her that the Postal Police incident reports were part of the
official investigation and could not be released to a craft employee.
Complainant’s subsequent request to the Postal Inspector was denied for
the reasons cited in the letter from Labor Relations. Subsequently,
complainant’s workers’ compensation claim was filed and accepted.
The AJ concluded that complainant’s allegation with respect to the
October 25, 2002 Letter of Warning (LOW) was untimely, as complainant
initiated EEO contact beyond the 45-day time-frame and that such
allegation constituted a discreet action. See 29 CFR § 1614.105 (a)
(1); National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
With respect to complainant’s disability claims, the AJ noted that
complainant does not assert that she had a disability prior to March 7,
2003. With respect to complainant’s claims arising after March 7, 2003,
the AJ assumed that complainant was an individual with a disability.
Despite the lack of evidence in support of a causal connection between
complainant’s prior 1994 EEO activity and management’s actions, the AJ
construes complainant’s reporting and complaining of the “racist pig”
note on February 27, 2003, as protected activity.
With respect to the March 5, 2003 Letter of Warning (Issue 2), the AJ
concluded that the undisputed evidence shows that the agency articulated
the reasons for issuing this discipline to complainant, and complainant
has not presented evidence of pretext. Specifically, management asserts
that complainant engaged in vulgar, hostile and inappropriate conduct.
Moreover, S1 explained that she rejected complainant’s denials because
S1 and another employee had witnessed one episode of profanity and the
obscene gesture and because another employee had reported the subsequent
use of profanity. The AJ concluded that such undisputed facts demonstrate
that the agency had a reasonable basis for issuing the Letter of Warning.
The AJ further concluded that complainant’s speculation as to motive does
not substitute for her failure to present any factual evidence that the
discipline was motivated by any unlawful factor.
The AJ assumed for the purposes of her decision that the two incidents
involving the note and the noose created a hostile work environment
motivated by race, but that the undisputed record shows that management
took prompt and effective remedial action to end the harassment.
Specifically, the AJ noted that the record shows that S1 immediately
called the Postal Inspection Service as soon as the note and noose were
brought to her attention. In addition, the undisputed record shows
that the Postal Inspectors reviewed the physical evidence and talked
to employees who worked in the area. However, no employee, including
complainant, knew or even suspected who had committed these acts.
On the day following the noose incident, the Senior MDO conducted a
stand-up talk for Tour 3 employees and stressed that such conduct was
not appropriate and would lead to discipline. The AJ further noted
that there is no claim or evidence that similar conduct recurred, and
complainant, who has not worked at the Oakland P&DC since March 6, 2003,
has not been subjected to any further incidents.
With respect to complainant’s request for the Postal Inspector’s reports,
the AJ concluded that complainant failed to show that such actions caused
her to suffer any materially adverse effect in the terms, conditions,
or privileges of her employment.
With respect to complainant’s allegation that she was forced to
return to work, complainant asserts that she received a letter from
an Injury Compensation Specialist dated January 23, 2004, stating
that she should report to work on February 2, 2004 at the Richmond
Bulk Mail Center. The AJ noted that the letter was sent by the Injury
Compensation office which indicates that this return to work order was
related to complainant’s workers’ compensation claim. The AJ further
noted that complainant contends that although this assignment was
contrary to her doctor’s orders, she reported to work but had a panic
attack and went to the hospital. Specifically, complainant asserts
that her entry into the Richmond facility frightened her. However,
the AJ points out that the record is devoid of evidence showing that
complainant was required to report to work again at Richmond pursuant to
the letter in question. Accordingly, the undisputed record shows that
complainant was never actually required to work at the Richmond facility.
In fact, the undisputed record shows that complainant was never required
to work anywhere until March 2005. Accordingly, the AJ concluded that
complainant failed to show that she suffered an adverse employment action
with respect to this issue.
The AJ also concluded that complainant’s allegations do not establish
a continuing violation because, except for the fact that they involve
complainant, the alleged events are not related to each other. The AJ
concluded that only two events can be characterized as harassment and
the remaining issues do not relate to such claims.
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 order,
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 discrimination occurred.5
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
February 6, 2008
__________________
Date
1 Due to a new data system, complainant’s case has been re-designated
with the above-referenced appeal number.
2 Complainant also raised the following allegations: (a) on August 4,
2003, complainant received a harassing letter from a senior EEO Complaints
Investigator which characterized her complaint as, “a bunch of words”
and in which he threatened to dismiss her complaint; (b) on June 18,
2001, complainant was issued a Letter of Demand which was rescinded by
a Step 3 Grievance Decision on October 5, 2001; (c) on November 8, 2002,
complainant became aware that she was denied work for the 2002 Veteran’s
Day Holiday detail even though she had signed the Holiday Sign-Up Sheet.
The agency dismissed Issue A on the basis that it failed to state a claim
and Issues B and C for untimely EEO contact. Upon review of the record,
we affirm the dismissal of these allegations.
3 We note that the undisputed record actually shows that at least
two other employees first discovered the “noose” and brought it to
the attention of complainant when attempting to determine if she knew
anything about it.
4 The undisputed record also shows that some employees did not know what
the object was and others believed it was a sling shot.
5 We note that much of complainant’s alleged disputed facts are not
corroborated by either documentary or testimonial evidence. In addition,
the record is devoid of evidence to support an allegation of sex
discrimination.
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7
0120060888
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
