01A63328F
09-27-2006
Melvina Epps, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Melvina Epps,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01A63328
Hearing No. 100-2005-00703X
Agency No. 4K-200-0040-05
DECISION
On May 5, 2006, complainant filed an appeal from the agency's March 24,
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 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. The appeal is deemed timely and is accepted pursuant to 29 C.F.R.
� 1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
Complainant filed a formal EEO complaint on January 20, 2005, alleging that
she was discriminated against on the bases of sex (female) and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when in December 2004, she was not hired for a Casual Employee
position with the agency. The record reflects that complainant had worked
periodically for the agency as a Casual Mail Handler from 1995 to 2003.
Complainant indicated an interest in working for the agency during the
Christmas holidays after December 2003, and continued to inquire about
vacancies at the agency's Edgewood Drive facility in Capital Heights,
Maryland from December 2003 to December 2004. In September 2004,
complainant filed a job application with the agency and indicated that she
wanted to work at the Edgewood Drive facility, but she was not hired.
Believing she was a victim of discrimination, complainant sought EEO
counseling and filed the aforementioned formal complaint. 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 timely requested a
hearing. The AJ assigned to the case determined sua sponte that the
complaint did not warrant a hearing. After the AJ did not receive a reply
to her Notice of Intent to Issue a Decision without Hearing from
complainant[1], she issued a decision without a hearing on March 17, 2006.
The agency subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that she was subjected to discrimination as
alleged. Complainant has made no arguments on appeal, and the agency has
not responded to complainant's appeal.
The AJ initially found that complainant failed to establish a prima facie
case of sex discrimination. In so finding, the AJ noted that complainant
failed to present any evidence that there were any employees outside her
protected group who were hired for a casual position at the Edgewood Drive
facility on or about September 2004. In addition, the AJ found that
complainant failed to establish a prima facie case of retaliation as she
failed to proffer any evidence that the facility's Hiring Manager (HM) was
aware of her prior EEO activity. Further, the AJ found that assuming,
arguendo, that the HM had been aware of complainant's prior EEO activity,
the time period of one (1) year between the protected activity and the
alleged adverse activity is too remote to infer retaliation by the agency.
The AJ found that had complainant established a prima facie of sex
discrimination or retaliation, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Namely, the HM stated that
there were no requests for Christmas causal positions at the Edgewood Drive
facility where complainant wanted to work. The record indicates that the
only hiring requests for Christmas casual positions were at two (2) other
facilities in the Washington, D.C. area. The AJ found that complainant
failed to proffer evidence to show that the agency's articulated reasons
were more likely than not a pretext for discrimination or retaliation.
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an
agency's final action shall be based on a de novo review . . ."); see also
EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de
novo"). This essentially means that we should look at this case with fresh
eyes. In other words, we are free to accept (if accurate) or reject (if
erroneous) the AJ's, and agency's, factual conclusions and legal analysis -
including on the ultimate fact of whether intentional discrimination
occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, � VI.A.
(explaining that the de novo standard of review "requires that the
Commission examine the record without regard to the factual and legal
determinations of the previous decision maker," and that EEOC "review the
documents, statements, and testimony of record, including any timely and
relevant submissions of the parties, and . . . issue its decision based on
the Commission's own assessment of the record and its interpretation of the
law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
Initially, we find that the AJ properly concluded that there were no
genuine issues of material fact in dispute such that a decision without a
hearing was appropriate. In addition, after a review of the record in its
entirety, including consideration of all statements submitted on appeal, it
is the decision of the Equal Employment Opportunity Commission to affirm
the agency's final action, because the AJ's issuance of a decision without
a hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination or retaliation for prior EEO activity
occurred.
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
____9-27-06______________
Date
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[1] The record indicates that the agency responded to the AJ's Notice of
Intent to Issue a Decision without a Hearing on February 23, 2006.