0120071394
04-21-2009
Delores D. Mejia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Delores D. Mejia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071394
Hearing No. 350-2005-00269X
Agency No. 4F-852-0097-05
DECISION
Complainant filed an appeal from the agency's December 15, 2006 final
order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. 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 Time and Attendance Collection System (TACS) Clerk at the agency's
General Mail facility in Phoenix, Arizona. On May 23, 2005, complainant
filed an EEO complaint alleging that she was discriminated against on
the bases of race/national origin (Hispanic) and disability (anxiety
disorder/depression) when:
1. On April 21, 2005, complainant was notified that her job would
be reposted on April 30, 2005, and she would become an "unencumbered
employee."
2. On February 16, 2004, complainant's supervisor sent her and
3 other employees an electronic mail message which contained racist
remarks.
By letter dated July 12, 2005, the agency dismissed claim (2) for untimely
EEO Counselor contact, pursuant to 29 C.F.R. �1614.107(a)(2).1 Claim (1)
was accepted for investigation. At the conclusion of the investigation,
complainant was provided 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, the AJ assigned to the case granted the agency's motion for
a decision without a hearing and issued a decision without a hearing on
November 24, 2006.
The AJ noted that in January 2005, the agency changed the hours of
operation of the TACS office in which complainant and other employees
worked. The TACS office would no longer be open on Saturday or Sunday for
operational considerations. Complainant's position and that of employees
E1 and E2 had Sunday and Monday each week as their scheduled days off
(SDO). With the change in the TACS office hours, their weekly schedules
would necessarily change. The AJ noted that under the collective
bargaining agreement in force at the time, the agency was required to
repost a bid position when the fixed schedule days were permanently
changed. Complainant's position was reposted on April 24, 2005.
The AJ observed that from December 2004 through April 1, 2005, complainant
was out of work under Family Medical Leave Act (FMLA). On April 11,
2005, complainant requested temporary light duty and to be assigned
to a different work location pursuant to her treating physician's
recommendations. Complainant expected to require light duty through
July 2005, possibly extending to November 3, 2005.
The AJ noted that complainant did not bid on the two TACS positions
reposted. However, on May 20, 2005, complainant was awarded a bid
position at another facility and her bid became final on June 1, 2005.
Complainant's physicians lifted all of complainant's work restrictions
effective September 14 - 15, 2005.
The AJ found that complainant did not present a prima facie case
of disability discrimination in that she did not show that she was
substantially limited in any major life activity. The AJ noted that
complainant did not show that she was either regarded as disabled or that
she had a record of disability. Further, the AJ found that complainant
did not establish a prima facie case of discrimination on either national
origin or disability because claim (1) did not describe any injury, harm
or loss or other adverse action as a result of the agency's actions.
The AJ found that complainant's temporary restrictions required that
complainant not return to the facility where she had been working
regardless of whether she was unencumbered, with or without the change
in scheduled days off.
Moreover, the AJ found that complainant did not present any evidence
that the agency's decision to repost her position was motivated by
discrimination. The AJ credited the agency's stated reasons that it was
necessary to repost complainant's position based upon the terms of the
collective bargaining agreement and the change in hours at the TACS.
The AJ concluded that complainant did not show that discrimination
occurred or that complainant suffered any injury as a result of the
actions described in claim (1).
The agency subsequently issued a final order on December 15, 2006,
adopting the AJ's finding that complainant failed to prove that she was
subjected to discrimination as alleged.
On appeal, complainant argues that because she became an unencumbered
employee, which E1 and E2 did not, the agency diminished her seniority.
Complainant also states that the electronic mail message described in
claim (2) provides the necessary nexus between the agency's decision to
repost her position and complainant's national origin.
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. Department of Defense, 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).
In the instant case, we concur with the AJ that no material facts
remained in dispute, and that the AJ properly entered her decision
without a hearing. We find that even assuming (without so finding)
that complainant established a prima facie case of disability and
race/national origin discrimination, that nothing in the record shows
that complainant suffered any harm as a result of the agency's actions
described in claim (1). We observe that the record does not indicate
any change in complainant's seniority or other terms or conditions of
employment because she was, for a brief period, without a bid position
and unencumbered. Rather, we note that complainant's seniority date
remained unchanged when complainant was awarded the position for which
she bid upon her return to work. Furthermore, we find that complainant
has not rebutted the agency's legitimate, non-discriminatory reasons
for the action described in claim (1).
We AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
4/21/09
__________________
Date
1 We observe that the AJ's decision does not address the dismissed
claim and complainant does not appeal the dismissal of claim (2).
Complainant states, however, on appeal that the electronic mail message
described contained racist remarks that the AJ failed to take into
consideration as background evidence. We concur with the agency
that claim (2) is untimely and was properly dismissed pursuant to 29
C.F.R. �1614.107(a)(2).
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0120071394
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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