01A54706
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
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01A54706
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A54706