Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120140414 Hearing No. 460-2013-00014X Agency No. 4G770015812 DECISION Complainant filed an appeal from the Agency's September 19, 2013, 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 Transitional Employee (TE)1 Carrier at the Agency's Demoss Station in Houston, Texas. She first received her TE appointment on March 30, 2011. On July 6, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: (1) on March 14, 2012, management came out to her route, questioned her about the mail, escorted her back to the station and instructed her to go home; and (2) on March 22, 2012, she was advised that her TE appointment would end March 23, 2012, and would not be renewed. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's February 27, 2013, motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on September 13, 2013. In reaching her decision, the AJ found the following facts, developed during the investigation, were undisputed: Prior to the events at issue, Complainant had filed two formal EEO complaints, and had sought EEO counseling on three other occasions, the most recent on December 20, 2011. On February 14, 2012, Complainant entered into a written agreement with management settling one of the matters for which she had been counseled. It is undisputed that the Station Manager was aware of Complainant's prior EEO activity. On February 1, 2012, Complainant submitted a request to work 1.15 hours of overtime. Her overtime request was denied by management and she was instructed to complete her route in seven hours. However, despite this instruction, it was determined that Complainant had failed to deliver several bundles of circulars on her route. The following day, a supervisor interviewed Complainant regarding her failure to follow instructions and delay of mail. On February 21, 2012, three carriers had to be sent out to assist Complainant complete her route. On February 22, 2012, Complainant received a performance evaluation, in which she was rated "unsatisfactory" on work quality and dependability. On March 14, 2014, while conducting a street observation of Complainant, a supervisor discovered that she was not in the delivery area she should have been in and was at the last stop on her route. The supervisor instructed her to deliver the mail according to the designated route. When Complainant finished delivering at the last stop of her route, she then proceeded to make deliveries in areas she was supposed to have delivered to earlier. The supervisor also observed a significant amount of undelivered mail in Complainant's vehicle. The supervisor reported these observations to the Station Manager, who went out to Complainant's route and ordered her to go back to the station and then go home. On March 22, 2012, Complainant was informed that her TE appointment would end on March 23, 2012. Based on these undisputed facts, the AJ found that although Complainant established a prima facie case of reprisal, she failed to show that the Agency's proffered reasons for its actions were a pretext for discrimination. The AJ noted that contrary to Complainant's assertion that she did not have any performance deficiencies, the record revealed that on February 25, 2011 she was rated "unsatisfactory" on work quality and dependability, and also noted the February 2, 2012 investigative interview. The AJ noted that statements given by management regarding efforts that were made to help Complainant improve her performance, including retraining and assigning her to various routes to see if she would better perform. Other carriers were sent out after dark to complete Complainant's route. Finally, the AJ noted that the employees to whom Complainant compared herself did not have performance issues. As such, the AJ found that Complainant did not show that the Agency acted in reprisal for her protected activity. The Agency adopted the AJ's findings and the instant appeal followed. 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. In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Here Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Thus, we find ample support for the AJ's decision that the record was adequately developed and there are no disputes of material fact. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). We agree with the AJ that Complainant established a prima facie case of reprisal as she had filed a number of prior EEO complaints in her less than one-year tenure with the Agency and the Station Manager was undisputedly aware of that activity. However, we note, as did the AJ, that the responsible management officials testified to multiple performance problems on Complainant's part that were ongoing despite correction. Finally, we agree that the record evidence supports the AJ's conclusion that Complainant has failed to prove, by a preponderance of the evidence, that the Agency's stated reasons for its actions were a pretext for unlawful retaliation. We note that the other TE carriers to whom Complainant compared herself did not have a record of performance problems like she did. 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 which adopted the AJ's decision finding no reprisal. 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 April 21, 2015 __________________ Date 1 Transitional employees are hired to work in temporary non-career positions for limited periods, usually no longer than one year. While these employees can serve in successive TE appointments, there must be a brief break in service between each appointment. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140414 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140414