01a54706r
12-15-2005
Debra G. Stanfill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Debra G. Stanfill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01A54706
Hearing No. 280-2005-0053x
Agency No. 4J640013203
DECISION
JURISDICTION
On June 30, 2005, complainant filed an appeal from the agency's May 31,
2005 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 events giving rise to this complaint, complainant worked as
a rural letter carrier associate at the agency's Bonne Terre Post Office in
Bonne Terre, Missouri. On August 25, 2003, complainant contacted an EEO
Counselor and filed a formal EEO complaint on December 26, 2003, alleging
that she was discriminated against on the basis of sex (female) when:
1. On August 5, 2003, management did not post Rural Route (RR) 2 for
bid in order to hold it open for a male rural carrier (C1) to
return to work; and
2. On September 12, 2003, complainant was moved from RR2 to RR6, which
placed her in a non-leave earning status.
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. On March 7, 2005, the AJ notified the agency of her
intention to issue a decision with a hearing. On April 15, 2005, the
agency moved for a decision without a hearing, to which complainant
responded on May 2, 2005. On May 9, 2005, the AJ issued a decision
without a hearing, finding no discrimination. The AJ found that
complainant failed to establish a prima facie case of sex discrimination
for either claim and failed to provide any evidence that the agency's
reasons for its actions were pretext for unlawful discrimination. The
agency subsequently issued a final order adopting the AJ's finding.
The record reveals that complainant has worked as a rural carrier associate
since 1995 and C1 has worked as a rural carrier since obtaining a bid for
RR2 in July 1989. On February 15, 2001, C1 accepted a temporary limited
duty job assignment offer after suffering an injury at work. Complainant
was temporarily assigned to C1's RR2 position after C1 accepted the
temporary limited duty job assignment. Complainant notes that according to
Agency Handbook EL 902, when as a result of a job-related illness or
injury, a regular rural carrier is unable to perform all the duties of his
or her assigned rural route for a period of two years, the employee must
relinquish his route and such route must be posted for bid. Complainant
contends that because C1 was unable to work as a rural letter carrier for
the period February 15, 2001 through September 6, 2003, a period exceeding
two years, the agency should have posted C1's position for bid.
Complainant further maintains that had the agency posted the RR2 position
for bid, she would have been awarded the position.
The agency maintains that C1 was placed in an emergency off duty status on
January 3, 2003, before the expiration of the two year period, because he
faced possible removal for an alleged act of violence in the workplace and
filed a grievance on the matter that was pending at that time. The agency
notes that Article 12.3.A.4 of the agreement between the agency and the
National Rural Letter Carriers' Association (NRLCA) states that routes
encumbered by carriers in a non-duty status are not considered vacant. The
agency maintains that RR2 was not considered vacant in February 2003 and
was not posted for bid because C1 was placed in an emergency off-duty non-
pay status while awaiting the results of his grievance on his proposed
removal. On June 25, 2003, the agency and the NRLCA on behalf of C1
entered into a settlement agreement in which C1's removal was reduced to a
14-day suspension and returned complainant to limited duty work on June 25,
2003. On September 12, 2003, complainant was returned to RR2 by his
physician without any restrictions, and complainant was moved to RR6.
Complainant contends that when she was reassigned to RR6, she stopped
accumulating leave. The agency responds that complainant has never been
entitled to earn leave as a rural carrier associate.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when she issued a
decision without a hearing finding no discrimination. Complainant contends
that contrary to the AJ's finding, she established a prima facie case of
sex discrimination because the agency's failure to post RR 2 for bid was an
adverse action. Complainant further contends that the agency's transfer of
her to a different route caused her to lose her leave earning status, which
is an adverse action. Complainant also argues that she is similarly
situated to a male co-worker she cited as a comparative employee (C1)
because she and C1 are supervised by the same person, worked as rural
letter carriers, and performed work on RR2 at various times. Finally,
complainant maintains that she provided pretextual evidence by alleging
that the agency did not follow its handbook when it failed to post C1's
position for bid.
STANDARD OF REVIEW
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").
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.
Department of Defense, 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).
In a claim such as the instant one which alleges disparate treatment based
upon sex, and where there is an absence of direct evidence of such
discrimination, the allocation of burdens and order of presentation of
proof is a three step process. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000) (applying the analytical framework described in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 03 (1973), to an ADEA
disparate treatment claim). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination; i.e., that a prohibited
consideration was a factor in the adverse employment action. Kimble v.
Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the complainant bears the ultimate responsibility to persuade the
fact finder by a preponderance of the evidence that the agency acted on the
basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S.
502 (1993).
Upon review of this matter, we first conclude that while complainant
contends that C1 was similarly situated to her, the record reveals that C1
is a rural carrier whereas complainant is a rural carrier associate. Rural
carriers are entitled to employment benefits such as sick and annual leave
and have regular routes, while rural carrier associates do not have
assigned routes or employment benefits. Therefore, we find that
complainant and C1 were not similarly situated individuals. Complainant
provided no other similarly situated individuals for her case or any other
evidence from which an inference of sex discrimination could be drawn.
Consequently, we find that the AJ properly found that complainant failed to
establish a prima facie case of sex discrimination for her complaint.
We further note that the agency provided legitimate, non-discriminatory
reasons for its actions. Specifically, the agency stated that C1 was
placed on off-duty status pending a decision on his grievance, which meant
the position was not considered vacant and "biddable." A copy of the
National Rural Letter Carriers' Association agreement confirms the agency's
assertion. The agency further responded that complainant was assigned to
RR6 because C1 was returned to his RR2 position pursuant to the terms of
the grievance settlement agreement. We find that complainant provided no
evidence from which a reasonable fact-finder could conclude that the
agency's proferred explanation was pretext for sex discrimination.
Consequently, we find that the AJ properly found no discrimination.
CONCLUSION
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 order,
because the Administrative Judge's issuance of a decision without a hearing
was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred. See Petty v. Department of
Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
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:
______________________________ _December 15,
2005___________
Carlton M. Hadden, Director Date
Office of Federal Operations