0120121929
09-18-2012
Bonnie May Satterlee-Giddings, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Bonnie May Satterlee-Giddings,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120121929
Hearing No. 471-2011-00008X
Agency No. 4J-493-0035-10
DECISION
Complainant filed a timely appeal from the Agency's final order, dated February 23, 2012, concerning her equal employment opportunity (EEO) complaint. She alleged employment discrimination in violation of 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 Commission accepts the appeal 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 Full Time Rural Carrier at the Agency's Barlow Post Office facility in Traverse City, Michigan. The pertinent record shows that Complainant was the one of the oldest rural route carriers. Her assigned route was Route 33. Her route included the ZIP code 49686.
On July 23, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (post traumatic stress and vocal cord disorder) and age (56) when, on April 10, 2010, the Agency adjusted her route, without any input from her.
The pertinent record shows that the Agency conducted a national mail count in March of 2010. Due to the growth of volume in some ZIP codes, the Agency's headquarters mandated that there be a split in certain ZIP codes. Complainant's route was one of those adjusted on April 10, 2010.
The Supervisor for Customer Service (S1) was the primary person responsible for the adjustment. S1 worked in another building apart from Complainant. She averred that she did not know Complainant's age. She was not aware that Complainant had any impairment. S1 did not have any contact with Complainant or the other carriers during the route adjustment; and she was not aware of the age or medical conditions of any of the other carriers impacted.
S1 split the Zip Code and followed the headquarters policy in making the route adjustment. The record shows that the April 2010 Barlow Branch interim route adjustment was accomplished by reviewing the carriers' route times, their mail volumes, where the routes were in relation to the new ZIP code alignments, and adjusting them to minimize any significant changes in the carriers' pay.
The record does not show that Complainant lost hours. As a result, Complainant's route after the mail count in March 2010 was 44.39 hours per week. After the route adjustment in April 2010, it was 44:40, or one minute greater. None of the carriers were provided the opportunity for input.
The record shows that the Station Manager (S2) was aware that Complainant had Post Traumatic Stress Disorder, but S2 did not participate in the route adjustment.
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). Over Complainant's objections,1 the AJ assigned to the case granted the Agency's April 19, 2011, motion for a decision without a hearing and issued a decision without a hearing on February 21, 2012.
The AJ found that there were no genuine issues of material facts or credibility that required a hearing. The AJ assumed, for the purpose of her analysis, that Complainant has a disability as defined by the Rehabilitation Act. The AJ found that Complainant could not establish a prima facie case of age or disability discrimination because the record did not show that the responsible official was aware of Complainant's age or disability at the time of the adjustment. The AJ also found that Complainant offered no evidence in her response to the Agency's motion that disputed these facts.
Next, the AJ reasoned that Complainant was mistaken that the route adjustment in April 2010 caused her harm by losing hours, because Complainant actually gained a minute. The AJ found that the Agency was entitled to summary judgment.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains: 1) the adjustment harmed the oldest carriers; 2) the process was flawed; 3) the employees were not kept in the loop about this process before the adjustments were effectuated, and 4) the persons responsible did not make the choices that Complainant would have made. Complainant also questions the truthfulness of S2's claim that she was not involved in the adjustment. Complainant asserts that the record does not contain an EEO affidavit from one of the officials whom Complainant had named in an earlier 2005 complaint.2
ANALYSIS AND FINDINGS
As this is an appeal from a 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. See also 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
We must first 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). 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
Section 633(a) of the ADEA expressly prohibits discrimination by federal agencies against its employees or applicants for employment who are at least 40 years of age. It specifically requires federal agencies to make all personnel actions free of any discrimination based on age. In the absence of direct evidence, complainant may establish a prima facie case of age discrimination by showing that she was subjected to an adverse employment action under circumstances that would support an inference of unlawful discrimination. When a complainant alleges that he or she has been discriminated against as a result of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133 (2000). Proof of a prima facie case will vary depending on the facts of the particular case. If the prima facie case is established, the burden then shifts to the Agency to articulate a legitimate, non-discrimination reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves, Id., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Similarly, to establish a claim under the Rehabilitation Act, a complainant must demonstrate that (1) he is an "individual with a disability", (2) he is "qualified" for the position held; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Trans., Inc., 245 F.3d 916 (7th Cir. 2001).
We find that the current record, as developed, is sufficient to render a decision without a hearing. We also find that there are no genuine disputes of material fact or credibility that would warrant a hearing. It is undisputed that the responsible management official was not aware of Complainant's age or medical condition when the subject decision occurred. Therefore, the AJ was correct in entering summary judgment because Complainant did not establish a prima facie case and there is no direct evidence of discrimination.
Complainant is contending that the AJ erred in entering summary judgment because the management officials were not forthcoming with the employees about the process that led to the adjustments. She contends that she was more qualified to conduct the adjustment than the person assigned to perform the function. She also states that there were major discrepancies in the mail count. In essence, Complainant contends that the Agency failed to articulate any real reason for the route adjustment. We need not reach whether the Agency's stated reasons were legitimate or nondiscriminatory. She does not offer any evidence that would show that the persons who actually conducted the adjustment were aware of her age or any medical conditions.
Accordingly, we find that the entry of summary judgment was appropriate and that the Agency was entitled to judgment as a matter of law.
CONCLUSION
Therefore, we AFFIRM the Agency's final action.
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 tends 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
September 18, 2012
__________________
Date
1 The record shows that Complainant file a response to the Agency's motion for summary judgment on May 12, 2011, which was not within the 15-day timeframe for responding.
2 We note that this appeal does not involve an allegation of retaliation.
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0120121929
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121929