Debra D. Ward, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency. Appeal No. 0120111700 Hearing No. 460-2010-00062X Agency No. 4G770020609 DECISION On February 1, 2011, Complainant filed an appeal from the Agency’s January 20, 2011, 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). 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 Laborer Custodian at the Agency’s facility in Texas City, Texas. On August 24, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her race (African-American), color (Caramel), and in reprisal for prior protected EEO activity when: 1. on May 26, 2009, management put her in emergency placement status and subsequently issued her a 14-day suspension; and 2. on or about August 10, 2009, Complainant reported an on-the-job injury and was subsequently issued a 7-day suspension for Unsatisfactory Safety Performance. 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. The AJ found that, after viewing the evidence in a light most favorable to Complainant, a decision without a hearing was appropriate as there were no genuine issues of material fact in dispute. The AJ issued a decision without a hearing on December 27, 2010, finding no discrimination. 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 makes no arguments on appeal. ANALYSIS AND FINDINGS As an initial matter we note that, as this is an appeal from a final order 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. 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 102, 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, it is not appropriate for an AJ to issue a decision without a hearing. In the context of an administrative proceeding, an AJ may properly issue a decision without a hearing only upon a determination that the record has been adequately developed for summary disposition. Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11, 2003). After a careful review of the record, the Commission finds that a decision without a hearing was appropriate, as no genuine dispute of material fact exists. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995). Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a prima facie case of race, color, and reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. With respect to claim (1), the record reflects that in April 2009 it was reported to management that thirty carrier cases were missing from the back dock area of Complainant’s facility. Report of Investigation, Affidavit B, page 27. The Office of the Inspector General (OIG) conducted an investigation into the disappearance of the the carrier cases worth more than $10,000. During the investigation information was provided to the OIG that Complainant was involved in the matter. Id. On May 26, 2009, Complainant was scheduled to attend an investigative interview regarding the disappearance of the carrier cases, but refused to cooperate fully and was, therefore, put into Emergency Placement off-duty status by management pending the completion of the OIG investigation. R.O.I., Affidavit A, page 33; Affidavit B, page 12; Affidavit C, page 3. The record shows that the OIG report cleared Complainant of any criminal activity in the matter, however it also concluded that she had acted improperly by giving away Agency property without proper authorization. R.O.I., Affidavit B, page 69. Subsequently, management issued her a 14-day suspension for Improper Conduct. R.O.I., Affidavit A, 37; Affidavit B; Affidavit C, page 4. We concur with the AJ’s finding that Complainant failed to proffer any evidence to show that the Agency’s actions were motivated by discriminatory or retaliatory animus, or that the Agency’s articulated reasons for its actions were pretextual. With respect to claim (2), the record shows that on August 7, 2010, Complainant sustained an on-the-job injury to her knee which she did not report to management until August 10. R.O.I., Affidavit B, page 87, 89. On August 18, 2009, an investigative interview was conducted with Complainant to determine the circumstances surrounding the incident and management determined that Complainant sustained her injury due to unsafe work practices. Id. Specifically, management determined that Complainant initially provided a written statement explaining that she “had taken two steps down the four step ladder, and then…jumped.” R.O.I., Affidavit B at 87, 88; Affidavit D. Despite the fact that Complainant later changed her statement from having jumped to having slipped from the ladder, management concluded that she had jumped and, therefore, issued her a 7-day suspension, dated August 31, 2009, for Unsatisfactory Safety Performance. Id. We concur with the AJ’s finding that the issuance of the 7-day suspension was in accordance with the Agency’s progressive discipline policy and that Complainant failed to proffer any evidence to show that the suspension motivated by discriminatory or retaliatory animus. CONCLUSION We find that viewing the record evidence in a light most favorable to Complainant, there are no genuine issues of material fact. We further find that the AJ appropriately issued a decision without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s decision and the Agency’s final order is affirmed. 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 31, 2011 __________________ Date 2 0120111700 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 5 0120111700