0120111853
01-06-2012
Carol A. Innis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Carol A. Innis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120111853
Hearing No. 520-2010-00181X
Agency No. 1A-113-0031-09
DECISION
On February 17, 2011, Complainant filed an appeal from the Agency’s
January 27, 2011, 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. 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 Mail Processing Clerk at the Agency’s work facility in Brooklyn,
New York.
On August 18, 2009, Complainant filed an EEO complaint wherein she
claimed that the Agency discriminated against her on the bases of race
(African-American) and sex (female) when on April 6, 2009, her position
was abolished, she was denied the opportunity to bid, and subsequently
on April 27, 2009, she was reassigned.
At the conclusion of the investigation, the Agency provided Complainant
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 and over the
Complainant's objections, issued a decision without a hearing on January
14, 2011.
The AJ found that no discrimination occurred. AJ’s Decision at 6.
The AJ stated that Complainant had been serving as an Acting Supervisor
since about March 1, 2008, and was considered an unassigned regular
employee on April 7, 2009, when Tour 3 mail processing positions were
abolished. Id. at 2-3. According to the AJ, Complainant was informed
by her union that she would lose her bid position unless she returned
from her Acting Supervisor assignment to her clerk position. Id. at 3.
The AJ noted that Complainant chose to remain as an Acting Supervisor.
Id. The AJ stated that Complainant was not permitted to bid in the
“in-section” bidding package for a new position because she was an
unassigned employee. Id. Complainant could only bid on positions after
other employees bid in a closed section bid package. Id. Complainant did
not receive any of the positions she bid on and was reassigned to Tour
3 as a Mail Processing Clerk. Id.
The AJ found that Complainant failed to set forth a prima facie case
of discrimination. Id. at 5. According to the AJ, Complainant
failed to establish that she was treated less favorably than similarly
situated individuals outside of her protected class as the comparisons she
referenced were either within her protected class or were not similarly
situated to her. Id. With respect to the comparison, the AJ noted that
an employee who was allowed to secure a bid after changing craft was like
Complainant, a Black female. Id. Another employee who changed craft
and secured a bid was a Black male. Id. With regard to a Black female
that Complainant stated also did not receive a bid package, the AJ noted
that she nevertheless received a bid position. Id. The AJ found that
another comparison was not similarly situated given that he was not an
Acting Supervisor at the time of the bidding package, although he had
been in that position for a portion of the day on the day before the
package opened. Id. The AJ observed with respect to Complainant’s
claim that this comparison had been warned by a union official to leave
the Acting Supervisor position to have a better opportunity in the bidding
process, that this was not an adverse action by an Agency manager. Id.
The AJ found that the Agency articulated legitimate, nondiscriminatory
reasons for the actions it took regarding its employees who were allowed
to bid in-section or who otherwise received bidded positions. Id.
The AJ found that Complainant failed to show that these reasons were a
pretext for race or sex discrimination. Id. The AJ reasoned that even if
not all of the individuals cited were treated identically, there was no
evidence to establish that those who received or did not receive bidded
positions did so based on race or sex. Id. at 6. The AJ further found
that it was not shown that those comparisons similar to Complainant,
who were unable to acquire bidded positions and were reassigned as a
result, were reassigned due to being female or Black. Id.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
On appeal, Complainant contends that her complaint contained numerous
factors that were not taken into consideration.
ANALYSIS AND FINDINGS
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.
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. Dep’t of Def., 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).
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 Constr. 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. Tex. Dep’t of Cmty. 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 Prods., Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
We shall assume, arguendo, that Complainant has set forth a prima
facie case of sex and race discrimination. The Manager stated that
Complainant’s Tour 3 Mail Processing Clerk position was abolished
pursuant to a reconfiguration of the staffing at the work facility.
The Manager explained that the reconfiguration entailed the elimination of
the Automation, Manual and other sections on Tour 2 and reassigned those
positions to Tours 1 and 3. According to the Manager, the change allowed
for an overall reduction in staffing that was needed due to declining mail
volumes. The Manager stated that Complainant’s position was declared
vacant pursuant to Article 37 of the National Agreement as Complainant was
still working as an Acting Supervisor when the reconfiguration occurred.
With regard to Complainant being denied the opportunity to bid, the
Manager explained that as an unassigned regular Complainant did not have
a bid position in a section, and thus she could not bid in the first
bidding cycle and did not secure a bid during the in-section bid.
As for Complainant’s reassignment to the position of Mail Processing
Clerk on Tour 3, the Manager stated it was pursuant to the realignment
and reposting of positions on Tours 1 and 3. According to the Manager,
Complainant was afforded the opportunity to express a preference
for residual vacancies in the facility. The Manager asserted that
the position to which Complainant was assigned was the result of the
contractual preferencing/assignment process applicable to unencumbered
employees as defined by the contract. The Manager stated that the
Agency relied on the provisions of Article 3 of the National Agreement
which gives management the right to determine the staffing needed for its
operations and to protect the efficiency of those operations; Article 12
of the National Agreement which defines the required actions when the
number of positions in a section is to be reduced; and Article 37 of
the National Agreement which prescribes the procedures for posting and
bidding for positions. We find that the Agency articulated legitimate,
nondiscriminatory reasons for the abolishment of Complainant’s position,
the denial of her opportunity to bid, and her subsequent reassignment.
As for the abolishment of her position, Complainant acknowledged
the Agency’s right to abolish positions given the current economic
environment. However, Complainant claimed that the execution of the
compression to two tours was unfair given that some employees were
allowed to bid in-section even though they were unassigned. Complainant
states that one African-American male employee who had been serving in a
higher level capacity was unassigned and allowed to bid in his section.
Complainant claims that an Asian-American male employee was told by
the union representative not to serve as an Acting Supervisor the day
before the bidding package was distributed. According to Complainant,
an African-American female employee was not given a bid package until
after the bid assignments were awarded. Complainant states that this
employee was subsequently slotted into a bid. Complainant argues that
another African-American female employee and an African-American male
employee with less seniority than her were allowed to change craft and
given the opportunity to secure bids.
The record reflects that all of these comparisons cited by Complainant
were of the same race as Complainant and two of the comparisons were
of the same sex. With regard to the Asian-American employee, the cited
incident was allegedly by a union official and was not committed by an
Agency official. We find that Complainant has not submitted persuasive
argument or evidence to establish that the abolishment of her position,
the denial of her opportunity to bid in the first bidding cycle, and
her reassignment to a Mail Processing Clerk position was attributable
to discriminatory motivation based on race or sex.
CONCLUSION
The Agency’s determination in its final order that no discrimination
occurred is AFFIRMED.
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
January 6, 2012
__________________
Date
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0120111853
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111853