Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.Download PDFEqual Employment Opportunity CommissionJan 7, 20150120133170 (E.E.O.C. Jan. 7, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120133170 Hearing No. 430-2013-00057X Agency No. 4K-290-0047-12 DECISION Complainant filed an appeal from the Agency’s July 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s Final Order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales, Service, and Distribution Associate (SSDA) Mail Clerk at the Agency’s Main Post Office facility in Columbia, South Carolina. On May 29, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), and age (47) when: On March 5, 2012, Complainant became aware that male coworkers were being given assignments with Saturday and Sunday off. Complainant’s previous bid which included Saturday and Sunday off, was abolished, and Complainant was forced to bid on a position with split days off. 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 requested a hearing. Over Complainant's objections, 0120133170 2 the AJ assigned to the case granted the Agency’s April 26, 2013 motion for a decision without a hearing. The AJ issued a decision without a hearing on July 2, 2013. In her Decision, the AJ found that the record was adequately developed and the material facts were undisputed. The AJ found that Complainant’s bid assignment, along with many other Mail Clerk positions, was abolished due to the changing mail volume where Complainant worked. Complainant’s regular days off had been Saturday and Sunday. The AJ found that without a bid position, Complainant and other employees whose positions had been abolished, were instructed to bid for a new position or face becoming an unassigned regular Mail Clerk whose days off could change from week to week. The AJ considered Complainant’s claim that after her position was abolished, other employees, not in her protected classes, were given Saturday and Sunday as their regular days off as well as some of Complainant’s former job duties, while she was compelled to bid for a position with split days off. The AJ found that Complainant failed to establish a prima facie case of discrimination on any basis. Specifically, the AJ found that Complainant sought to compare herself to coworkers E1, E2, and E3. The AJ found the undisputed evidence shows that E1 and E2 do not hold the same position that Complainant does. They are not, the AJ observed, regular SSDA Mail Clerks. E1 and E2, the AJ found, are Mail Processing Clerks, and not SSDAs. E3 is an SSDA, but the AJ noted that E3 is an unassigned regular, and his unscheduled days are subject to change based on the needs of the service. The AJ further found no dispute that along with Complainant’s bid assignment, other bid assignments were also abolished and reposted with changes. The AJ found that Complainant presented no evidence from which an inference of race, color, sex, or age discrimination could be drawn. The AJ considered the Agency’s legitimate, nondiscriminatory reasons for its actions, assuming that Complainant established a prima facie case. The AJ found the undisputed evidence showed that a massive change occurred in the Columbia, South Carolina post offices in which many positions were realigned because of changing mail volumes and to address administrative issues. The AJ found that Complainant presented no evidence that the Agency’s reasons for its actions were untrue and a pretext to mask discrimination. The AJ concluded that drawing every reasonable inference in Complainant’s favor, Complainant failed to show that she was subjected to discrimination on any basis as alleged. 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. 0120133170 3 On appeal, Complainant states that the Agency’s plan to change the Clerk positions to include dual schemes and other changes ultimately failed and was not well thought out. Complainant states that in the process of implementing the poorly designed changes, she lost her regular days off (Saturday and Sunday), while White, male employees over 40 were given Saturday and Sunday off. ANALYSIS AND FINDINGS 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. Dep’t of Def., 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). 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, 0120133170 4 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he 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 this case, however, since 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). In the instant case, we find the AJ properly issued her Decision without a hearing. We concur with the AJ that the material facts are undisputed and that Complainant did not establish a prima facie case of discrimination on any basis. Specifically, Complainant failed to identify any employees, not in her protected classes who were treated better than she was under the same or similar circumstances. We find, as did the AJ, that Complainant identifies other employees, holding different job titles, who were given Saturday and Sunday off, when those same regular days off were taken from her. We concur with the AJ that the undisputed evidence shows that E1, E2, and E3 are not similarly situated to Complainant because they are not SSDA regular full time employees with a bid assignment. We find no dispute that to avoid becoming an unassigned regular SSDA, similar to E3, Complainant chose instead to bid on a posted assignment so that she would have the same unscheduled days each week, while E3’s unscheduled days are subject to change. We find that Complainant did not present evidence that the Agency’s legitimate reasons for its actions were unworthy of belief. We assume, for purposes of a decision without a hearing, that Complainant’s contention that the Agency’s plan to change the SSDA positions and other Mail Clerk positions to include dual schemes and other changes was a poor decision. Even so, we find that Complainant presented no evidence that race, color, sex, or age1 discrimination motivated the Agency’s decision to abolish the many positions it did and to repost them with changed days off and different job duties. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision finding no discrimination. 1 We note, as did the AJ, that E1, E2, and E3 are all older than Complainant. 0120133170 5 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. 0120133170 6 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 Date January 7, 2015 Copy with citationCopy as parenthetical citation