0120110031
02-10-2011
Marilyn A. Reynolds, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Marilyn A. Reynolds,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120110031
Hearing No. 510-2009-00267X
Agency No. 4H-320-0021-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's August 24, 2010 final action concerning an equal
employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant was employed as a Sales and
Service/Distribution Associate (SSA), PS-06, at the Agency's Air Transfer
Office (ATO) in Jacksonville, Florida.
On March 5, 2009, Complainant filed the instant formal complaint.
Therein, Complainant alleged that the Agency discriminated against her
in reprisal for prior EEO activity when:
(1) on October 20, 2008, her Job #95462270 was changed to a part-time
regular position and placed up for bid on October 28, 2008;
(2) in December 2008, she was denied assistance during the Christmas
holiday;
(3) on February 6, 2009, she was told that management would be closing
the ATO window within 60 days; and
(4) on an unspecified date, she was forced to take an hour lunch break.
On March 20, 2009, the Agency issued a partial dismissal. Therein, the
Agency dismissed claims (3) - (4) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.1 However, the Agency accepted claims (1) -
(2) for investigation.
Following the investigation concerning claims (1) - (2), Complainant
requested a hearing before an EEOC Administrative Judge (AJ). Complainant
also moved to reinstate claims (3) - (4), dismissed by the Agency for
failure to state a claim. The Agency filed an opposition to Complainant's
motion. On September 16, 2009, the AJ issued an Order reversing the
Agency's dismissal of claims (3) - (4) for failure to state a claim.
The Agency thereafter filed a Motion for a Decision Without a Hearing.
Complainant filed a response to the Agency's motion.
On August 19, 2010, the AJ issued a decision by summary judgment in
favor of the Agency. The Agency fully implemented the AJ's decision in
its final action.
In his decision, the AJ found no discrimination. The AJ found that
Complainant established a prima facie case of reprisal discrimination.
The AJ nevertheless found that the Agency articulated legitimate,
nondiscriminatory reasons for its actions which Complainant failed to
show were a pretext.
Regarding the harassment claim, the AJ found that the evidence in the
record did not establish that Complainant was subjected to harassment
based on retaliation. Specifically, the AJ found that the alleged
harassment was insufficiently severe or pervasive so as to create a
hostile work environment.
Regarding claim (1), the AJ noted that Complainant's full-time SSA
position was abolished due to a city-wide Function 4 Review that indicated
there was not enough revenue or mail volume at the ATO to require a
full-time SSA position. The record reflects that Complainant could have
been an unassigned regular following the abolishment of her position,
in which case she would have been assigned to full-time and she could
have bid to other full-time position. However, Complainant chose not
to do so. The record reflects that when the part-time regular (PTR)
SSA position at the ATO was announced, Complainant voluntarily bid on
that position because she claimed not many jobs were suitable for her
or secured enough for her to bid on.
The AJ noted that a former Acting/Manager Customer Services (AM) stated
that during the relevant time, "the city conducted Function 4 reviews
and it was determined that [Complainant's] eight- hour bid job was not
the best needs of service at the AMF. Her bid job was abolished and
reposted as a PTR position." AM further stated that Complainant's prior
protected activity was not a factor in management's decision to change
her full-time position to a part-time position and place it up for bid.
The Manager, Customer Services (MCS) stated "the postal service is going
through major reorganization which required many jobs to be reverted
or abolish because of revenue, volume and service needs." MCS stated
that Complainant's position was changed to a part-time regular position
and placed for a bid because "this position did not earn the revenue
. . . to keep an eight-hour a day position. Approval was given by
district and headquarters."
The Manager C/S Operations (M1) stated "very low customer traffic and
revenue allowed the hours of operations to be reduced, causing the need
for change from regular to part time clerk requirement. At the point
that a part time clerk is needed the regular job is abolished and the
part time job posted installation wide for bid. This reduction in retail
hours was reviewed and approved at the District and SEA levels."
Regarding claim (2), MCS stated that Complainant's request for assistance
during the Christmas holiday "was never denied." M1 stated that she
does not recall receiving a request from Complainant for assistance
during the Christmas holiday.
Regarding claim (3), the AJ noted that Complainant acknowledged that
approximately one month later she learned nothing had been said about
the ATO window closing. Complainant also acknowledged that the ATO
window had never been closed.
Regarding claim (4), the AJ stated that irrespective of the reasons
Complainant may have bid on the PTR position, the PTR position provided
for the half-hour lunch break. The AJ further stated any successful
bidder for the PTR position would also have a half-hour lunch break.
On appeal, Complainant, through her representative argues that AM
"harbored animus toward her as a result of her increased EEO activities
via representing at least four (4) National Alliance of Postal & Federal
Employee members during the year 2008." Complainant further argues that
AM's testimony was misleading. Furthermore, Complainant argues that
she has been subjected to further retaliation following the abolishment
of her former full-time position.
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, 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 review of the record in its entirety, including consideration of
all statements submitted on appeal, we can discern nothing in the record
reflecting the discriminatory animus motivated the Agency actions in the
instant claim. Therefore, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency's final action because
the Administrative Judge's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that unlawful discrimination occurred.
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 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), 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
February 10, 2011
__________________
Date
1 In its partial dismissal, the Agency noted that claim (3) was not
brought to the EEO Counselor's attention.
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0120110031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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