01a53889
07-19-2006
Marion Bryant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marion Bryant v. United States Postal Service
01A53889
July 19, 2006
.
Marion Bryant,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53889
Agency Nos. 4H-310-0123-03, 4H-310-0001-04
Hearing Nos. 110-2005-00044X, 110-2004-00392X
DECISION
On April 25, 2005, complainant filed an appeal with this Commission from
an agency decision adopting the two March 9, 2005 decisions of the EEOC
Administrative Judge (AJ), one finding no discrimination and the other
dismissing the complaint for failure to file the complaint in a timely
manner pursuant to 29 C.F.R. � 1614.107(a)(2).
Agency No. 4H-310-001-04
In Agency No. 4H-310-0001-04, complainant sought EEO counseling in
September 2003, alleging that he was discriminated against on the bases
of age, race, and in reprisal for prior EEO activity when he received
a notice on September 10, 2003, informing him that he was not selected
for the position of Manager, Customer Service, Vacancy No. 08294.
In his decision dismissing the complaint, the AJ found that complainant
received his notice of right to file a formal complaint, through counsel,
on October 26, 2003, and that he did not file his formal complaint until
February 19, 2004, which was beyond the 15-day period for timely filing.
Complainant has not offered adequate justification to extend or waive
the time limit for filing the appeal. Accordingly, we will affirm the
agency's decision pursuant to 29 C.F.R. � 1614.107(a)(2).
Agency No. 4H-310-0123-03
In Agency No. 4H-310-0123-03, complainant alleged that he was
discriminated against on the bases of race (African American), color
(black), sex (male), age (52), and in reprisal for prior EEO activity
when he was not selected to be interviewed for the position of Manager of
Customer Service, Vacancy No. 0200019, at the agency's Southside Station.
In his decision finding no discrimination in Agency No. 4H-310-0123-03,
the AJ concluded that complainant had established a prima facie case of
race and age discrimination because each of the three applicants who were
interviewed for the position was of a different race and all three were
younger than complainant. Concerning retaliation, the AJ noted that the
three panel members were not aware of complainant's prior EEO activity
and complainant did not rebut that evidence. The AJ also concluded that
the agency had articulated a legitimate, nondiscriminatory reason for
not selecting complainant for the position and, also, that complainant
failed to show that the agency's reason was pretextual. Specifically,
the AJ noted that the members of the rating panel found complainant
to be less qualified than the three applicants who were interviewed.
Noting that complainant had more years of supervisory experience than
the selectee, the AJ stated that the selectee had experience as an
acting manager in charge of an agency facility which complainant did not
have and, further, that the selection was based not only on experience
but, also, on the responses to the KSA (knowledge, skill and abilities)
responses of the applicants on their applications. The AJ noted that the
panel members were more favorably impressed with the KSA responses of the
applicants who were interviewed than with the responses of complainant,
specifically regarding accounting ability.
The Commission's regulations allow an AJ to issue a decision without a
hearing when the AJ finds that there is no genuine issue of material
fact. See 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.
Although the initial inquiry in a discrimination case usually focuses
on whether complainant has established a prima facie case, the prima
facie inquiry may be dispensed with when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. In such cases,
the inquiry shifts from whether complainant has established a prima
facie case and proceeds to the ultimate issue of whether complainant has
shown by a preponderance of the evidence that the agency's actions were
motivated by discrimination. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
After a careful review of the record, the Commission finds that grant
of summary judgment in Agency No. 4H-310-0123-03 was appropriate, as no
genuine dispute of material fact exists. 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, complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
The agency's decision is AFFIRMED.
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
July 19, 2006
__________________
Date