Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

May 15, 2013

0120121939 (E.E.O.C. May. 15, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120121939

Hearing No. 490-2011-00081X

Agency No. 4H-370-0105-10

DECISION

On March 14, 2012, Complainant filed an appeal from the Agency’s February 29, 2012 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 Commission deems the appeal timely and accepts it for de
novo review 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 events giving rise to this complaint, Complainant worked as a Supervisor,
Distribution Operations at the Agency’s Processing & Distribution Center (P&DC) in
Memphis, Tennessee. Complainant applied for a Safety Specialist position. She was one of
twelve applicants and one of the three who was selected for an interview. Management
determined that none of the applicants was sufficiently qualified to assume the position so the
vacancy announcement was canceled and re-posted. Ultimately, due to a hiring freeze, no one
was selected for the position. Complainant also sought details to the Safety Specialist position,
but the Memphis Plant Manager would not release any of the supervisors because the P&DC
was too short staffed.

On September 3, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of race (African-American) when she was not selected
for the Safety Specialist position or given any opportunity to detail into it. At the conclusion of
the investigation, the Agency provided Complainant with a copy of the report of investigation
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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. He gave notice of his intent to grant summary
judgment. No party responded, and the AJ issued a decision on February 21, 2012. 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. This appeal followed.

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). 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.

Complainant argues that the Safety Specialist position was deliberately not filled to keep it
available for a White employee to be selected. She also identified a White employee who was
granted a detail to the Safety Specialist position. For these reasons, we find that Complainant
established a prima facie case of race discrimination. We further find that the Agency has met
its burden of production by articulating legitimate, nondiscriminatory reasons for its actions.
With regard to the selection for the position, no selection was made because the candidates did
not demonstrate sufficient knowledge, skills or abilities during the interview or on their
applications. The position remained vacant due to a hiring freeze. Complainant does not
dispute the assessment of her qualifications or the effect of the hiring freeze.

With regard to the detail opportunity, the Agency explained that the detail was given to the
White employee because she lived in commuting distance of Nashville where the detail was
“domiciled.” The Agency did not want to have to pay per diem or housing cost to an
individual, who, like Complainant, did not live within the commuting distance of Nashville.
Complainant does not dispute this. She does argue that other individuals were granted these
details but management specifically denies this, and there is no evidence to support
Complainant’s contentions.

Complainant has not set forth evidence or offered argument from which a reasonable fact
finder could conclude that the Agency’s explanations are a pretext for race discrimination. It is
her burden to do so. For this reason, we discern no basis to disturb the AJ’s decision, and we
AFFIRM the Agency’s final order.

0120121939

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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
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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 15, 2013
Date