01a52536
05-18-2005
Alnita G. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Alnita G. Brown v. United States Postal Service
01A52536
May 18, 2005
.
Alnita G. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A52536
Agency No. 4F-945-0223-03
Hearing No. 370-2005-0044X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of 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. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Distribution Window Clerk,
PS-05, at the agency's Emeryville Station of the Oakland Post Office,
in Emery, California, filed a formal EEO complaint on December 9, 2003,
alleging that the agency discriminated against her on the basis of age
(D.O.B. 10/20/1947) when, on August 20, 2003,<0> complainant was issued a
letter of warning charging her with Unsatisfactory Job Performance/Delay
of First Class Mail/Failure to Process P.O. Box Rents. 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, finding no discrimination.
The AJ found that although complainant alleges that other employees were
treated more favorably under similar circumstances, she does not explain
how this is so or under what circumstances. The AJ additionally found
that one of the alleged comparators is outside the protected age group
and yet was also issued a letter of warning for failure to report to
work as scheduled. The AJ found that moreover, complainant's supervisor
issued a letter of warning to one of the three alleged comparators
identified by complainant at nearly the same time as the one given to
complainant. The AJ further found that the agency articulated legitimate,
nondiscriminatory reasons for the action in question, and that complainant
failed to show that the reasons were pretext for age discrimination.
The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order. As an initial matter we note that,
as this is an appeal from a FAD 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 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.
In the instant case, assuming arguendo that complainant established
a prima facie case of age discrimination, the agency has articulated
legitimate, nondiscriminatory reasons for the action in question.
Specifically, the agency found that complainant's performance was
unacceptable, and she had failed to process mail in a timely and
satisfactory manner for several months before she was issued the letter
of warning. Here, complainant has failed to present evidence from which
a reasonable fact-finder could conclude that the reasons were pretext
for discrimination.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine dispute
of material fact exists. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). We find that the AJ's decision
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we conclude
that complainant failed to present evidence that the agency's actions
were motivated by discriminatory animus toward her protected class.
Therefore, we AFFIRM the agency's final order.
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
May 18, 2005
__________________
Date
0 1Record evidence indicates that the letter was actually issued on
August 19, 2003.