0120080310
05-07-2009
Barbara A. Cherry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Barbara A. Cherry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120080310
Hearing No. 550-2007-00298X
Agency No. 1F-933-0001-07
DECISION
On October 20, 2007, complainant filed an appeal from the agency's
September 19, 2007 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.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Sales & Service Associate at the agency's Bakersfield-Oildale
Carrier Annex in Bakersfield, California. On January 20, 2006, the
agency posted a vacancy for a Lead Sales & Service Associate position at
the Bakersfield Downtown Station. The bidding process closed on January
30, 2006. In February 2006, complainant was deemed the high bidder and
awarded the position. Complainant was not immediately placed into the
position because she was "pending qualification status," i.e. it was
anticipated that complainant would have to complete training, or "pass a
scheme," in order to be qualified for the position. Complainant alleged
that soon after she was awarded the bid she was informed by her then
supervisor and the employee responsible for posting bids that management
was planning on abolishing the position.
On August 25, 2006, pursuant to a Step 2 settlement on an unrelated
grievance, complainant was assigned to work in the Passport Office of
the Bakersfield-Oildale Carrier Annex as a full-time Passport Clerk.
On August 28, 2006, complainant relinquished the Lead Sales & Service
Associate position after accepting the grievance settlement. On September
13, 2006, the Lead Sales & Service Associate position was awarded to
the next highest bidder (Caucasian), effective September 16, 2006.
On January 24, 2007, complainant filed an EEO complaint alleging that
she was discriminated against on the basis of race (African-American)
when, on September 13, 2006, she was not awarded the T-6 Lead Sales
Associate position at the Downtown Bakersfield Station.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's July 16, 2007 motion for a decision
without a hearing and issued a decision without a hearing on September
14, 2007. The AJ's decision found that complainant failed to establish
that the agency's legitimate, nondiscriminatory reasons for its actions
were a pretext for unlawful race discrimination. 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.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred in finding no
discrimination and reiterates arguments made below. In response, the
agency urges the Commission to affirm the agency's final decision.
ANALYSIS AND FINDINGS
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").
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).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case
of discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The Downtown Station
Manager submitted an affidavit into the record stating that she did not
immediately place complainant into the position because she was under
the impression that complainant was training to pass a scheme to be
qualified for the position. The Manager, Customer Services submitted an
affidavit noting that selectees for the Lead Sales & Service Associate
position were previously required to pass a test, or scheme, to qualify
for the position, and "it was not until later that it was determined
that the regulations had changed and no qualifying was necessary."
After management officials had learned that no further training was
necessary for the Lead Sales & Service Associate position, complainant
was still not placed into the position because complainant relinquished
her bid position and accepted a settlement on an unrelated grievance
placing her into a Passport Clerk position.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. Upon review, we concur with the AJ's determination that
complainant failed to provide any evidence of pretext in the record.
Moreover, we find that the record is devoid of any evidence that
the agency's actions were motivated by discriminatory animus towards
complainant's race.
CONCLUSION
The Commission finds that summary judgment was appropriate in this
case because no genuine issue of material fact exists. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus towards her. We discern no
basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in the decision, the agency's
final order is AFFIRMED.
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
May 7, 2009
Date
2
0120080310
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120080310