0120064680
03-27-2008
Edith B. Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edith B. Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200646801
Agency No. 4F-890-0071-05
Hearing No. 480-2006-00026X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 21, 2006, 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of these events, complainant worked as a relief clerk
at various facilities in the Reno, Nevada area. Complainant claimed
discrimination based on race (African-American), sex (female), color
(Black), and age (D.O.B. 05/15/53) when: (a) in April 2005, junior
employees were trained for passport processing before her; (b) in April
2005, she was issued a 14-day suspension for unacceptable attendance;
and (c) in June 2005, she was removed for unacceptable conduct and
misappropriation of government property. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On July 12, 2006, the AJ issued a decision without a hearing,
finding that the agency did not discriminate against complainant.
At the outset, the AJ determined that there were no genuine issues of
material fact in dispute. The AJ then found that the agency set forth
the following legitimate, nondiscriminatory reasons for its actions:
as to claim (a), management sought volunteers for passport training,
complainant expressed interest, and was trained after an employee fluent
in Spanish and another who was located at the site; as to claim (b),
complainant received a suspension when she used 48 hours of sick leave in
early March 2005, after receiving a Letter of warning (LOW) for absences
in early February 2005; and as to claim (c), complainant failed to pay
for keys to her box that she had ordered, she was trained in window clerk
transactions and knew the procedures for ordering and paying for mailbox
keys, and prior to this incident, she had been suspended for writing bad
checks to the agency. The AJ determined that complainant failed to show
that the agency's reasons were pretext for discrimination.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999). Initially, we consider whether
the AJ properly issued a decision without a hearing on this record.
The Commission's regulations allow an AJ to issue a decision without
a hearing when s/he finds that there are no genuine issues of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure in the Federal Rules of Civil Procedure,
Rule 56, and 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). The AJ may properly issue a decision without
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. 0120024206 (July 11, 2003).2
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
issuance of a decision without a hearing was appropriate, and the
preponderance of the evidence of record does not establish that
discrimination occurred.3
Accordingly, the agency's decision is affirmed.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__03-27-2008________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Petty requires that, before a summary judgment decision may be issued,
a determination must be made that the record is adequately developed;
that no genuine issues of material fact remain; that no fact-finding
is necessary; and that the opposing party has been given ample notice,
a comprehensive statement of the undisputed facts, the opportunity to
respond, and, if necessary and appropriate, the opportunity to engage
in discovery. The Commission's administrative hearings are not strictly
judicial in nature but are "an adjudicatory proceeding that completes the
process of developing a full and appropriate record." EEOC Management
Directive-110 (MD-110), at 7-1 (1999); see also 29 C.F.R. � 1614.109(a)
(the AJ assumes "full responsibility for the adjudication of the
complaint, including overseeing the development of the record").
3 Issues (b) and (c) were resolved outside of the EEO process, and
complainant returned to work, with no loss of pay.
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0120064680
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064680