0120131289
06-14-2013
Dee A. Johnson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Dee A. Johnson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131289
Hearing No. 470-2011-00237X
Agency No. 4J-460-0031-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 27, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Postmaster, EAS-18, at the Agency's Nineveh, Indiana Post Office.
On December 27, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On April 6, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the basis of age (over 40) when:
from December 15, 2010 to present, management has denied her a Function 4 Audit and proper staffing for her office.
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On November 30, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In his decision, the AJ dismissed Complainant's claim concerning the insufficient staffing for her office, on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The AJ determined that the alleged discriminatory event occurred on July 17, 2010, when a named PTF Clerk was involuntarily reassigned to the Agency's Columbus Post Office due to declining volumes and Customer Service Variance (CSV) staff analysis; however, Complainant did not initiate EEO Counselor contact until December 27, 2010, which was beyond the 45-day limitation period.
The AJ nevertheless proceeded to address the instant formal complaint on the merits, finding no discrimination. The AJ found that Complainant did not establish a prima facie case of age discrimination. The AJ found that even assuming Complainant established a prima facie case of age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The AJ noted that Level 18 Postmasters generally manage small to medium size city post offices with limited distribution activity. The subject post offices provide a combination of city, rural, and highway contract route mail delivery and collection as well as retail sales. The AJ also noted that Level 18 Postmasters are required to perform clerk duties including window duties.
The record reflects that before November 2009, the Agency staffed the Nineveh Post Office with a Postmaster and two part-time flexible (PTF) clerks. The record further reflects that after November 2009, the Agency reduced the staffing level to a Postmaster and one PTF clerk.
The AJ noted that Complainant requested a "Function 4" review of the Nineveh Post Office. The record reflects that "Function 4" is the customer service operations at a post office which includes distribution; collections; office work; records; scanning; reports; posting accounts; maintenance; carrier check in, check out and dispatch; and opening and closing the office. The AJ noted that management uses a Function 4 review to help determine staffing at an office including clerk workload, hours, scheduling, and duties assessed at each office in order to maximize efficiency.
The AJ noted that the Acting Human Resources Manager (Manager) stated the Function 4 review at the Nineveh Post Office was conducted on July 8, 2009 and another review was conducted on January 4, 2010. The Manager stated that the July 8, 2009 review "showed that we were supposed to excess 1 PTF clerk. The office earned 4.74 hours a day. On January 4, 2010, [Complainant] still had 2 PTFs. She kept fighting us on the PTFs."
Further, the Manager stated that the January 4, 2010 review "still showed that it earned 1 PTF clerk. The budget reduction was supposed to be - 1,208 work hours. So we were still to excess 1 PTF clerk after the on-site function 4 review."
The Postmaster of the Agency's Greenwood, Indiana facility stated that in December 2010, he conducted a Function 4 audit at the Nineveh Post Office. The Postmaster stated that the review showed "there were two on site Function 4 Audits and 1 one administrative review. All three reviews indicated a total of 1.92 to 2.01 employees were needed in this office. This basically meant that 1 Postmaster and 1 clerk were needed to operate this office based on mail volumes, hours of operation, walk in revenue and the volumes and data entered into by CSAW by the Complainant and her staff during the previous 6 months."
Further, the Postmaster stated that none of the Function 4 audits and reviews he conducted had anything to do with Complainant's age. The Postmaster stated "in this time of financial instability in the Post Office, we conducted the F4's to reduce work hours where appropriate due to the declining mail volumes and the decreased revenue coming into the retail offices. Level 18 offices are not the same and cannot be grouped together. Each of the Level 18 offices [has] different hours of operations, different times that transportation arrives and departs, [has] different mail volumes and different numbers and types of routes. Some offices have city and rural delivery while some only have rural delivery. Revenue varies from level 18 office to level 18 office. There are so many differences between these level 18 offices that each review is going to be different for these offices."
Complainant's asserted that a named newly promoted Postmaster of a lower salary level, lower age and less experience but of the same Level 18 was budged 28% more hours for staffing clerks. However, the Postmaster stated that a Function 4 audit was performed at the newly promoted Postmaster's post office and the review "showed 2 clerks and a Postmaster."
The Manager, Post Office Operations (MPOO) stated that Complainant reports to her. MPOO stated that Complainant requested a Function 4 review and "the results demonstrated the current complement was sufficient." MPOO stated that she did not discriminate against Complainant based on her age. Moreover, MPOO stated the Small Office Variance (SOV) program the only factor considered in determining staffing levels at the Nineveh Post Office.
The instant 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). 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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination by summary judgment. Complainant has not identified any material facts in dispute which require resolution through a hearing. The AJ's decision properly summarized the relevant facts established during the investigation, and referenced the appropriate regulations, policies, and laws. Complainant did not prove, by a preponderance of the evidence, that the decisions made here were motivated by discriminatory animus toward Complainant's age.
Based on our careful review of the record and consideration of all arguments presented on appeal, the Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.1
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
June 14, 2013
__________________
Date
1 Because we affirm the AJ's finding of no discrimination of Complainant's claim concerning the insufficient staffing for her office for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. untimely EEO Counselor contact).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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