Connie Su, Complainant,v.John E. Potter Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 3, 2005
01a52221 (E.E.O.C. Aug. 3, 2005)

01a52221

08-03-2005

Connie Su, Complainant, v. John E. Potter Postmaster General, United States Postal Service, Agency.


Connie Su v. United States Postal Service

01A52221

August 3, 2005

.

Connie Su,

Complainant,

v.

John E. Potter

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A52221

Agency No. 4F-907-0063-03

Hearing No. 340-2003-03667X

DECISION

Complainant initiated an appeal from the agency's final order concerning

her equal employment opportunity (EEO) complaint of unlawful 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.

The record reveals that complainant, a Distribution/Window Clerk at

the agency's Main Post Office, Compton, California facility, filed

a formal EEO complaint on February 13, 2003<1>, alleging that the

agency discriminated against her on the bases of race (Asian), age

(D.O.B. 10/10/1951), and reprisal for prior EEO activity when:

On 11/18/02 complainant was given a notice from her supervisor that her

starting time would change from 10 A.M. to 8:45 A.M..<2>

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,

dated November 4, 2004, finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of race, age or reprisal discrimination. Specifically, the AJ found that

complainant failed to demonstrate that similarly situated employees not

in complainant's protected classes were treated differently under similar

circumstances when her starting time was changed from 10 am to 8:45 am.

The agency's final order, dated December 30, 2004, implemented the

AJ's decision.

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, summary judgment

is not appropriate. In the context of an administrative proceeding,

an AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We note, as did the AJ, that complainant failed to identify

any similarly situated employees, outside of complainant's protected

classes, who did not have their duty hours changed. We find that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws.

Further, construing the evidence to be most favorable to complainant, we

note that complainant failed to present evidence that any of the agency's

actions were motivated by discriminatory animus toward complainant's

protected classes. We therefore AFFIRM the agency's final order finding

no discrimination.

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

August 3, 2005

__________________

Date

1Complainant's complaint contains an error,

listing the complaint date as 2002, instead of 2003.

2The AJ noted that complainant's complaint contained two other claims

(removal from a cage position and harassment) that were dismissed by the

agency by letter to complainant dated February 25, 2003. The AJ noted

that complainant did not seek to amend her complaint at the hearing

stage or otherwise seek review of the agency's dismissal of these two

claims by timely motion to the AJ.