0120120123
06-21-2013
Francisca A. Fitzpatrick, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Francisca A. Fitzpatrick,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120120123
Hearing No. 430-2009-00321X
Agency No. 6K-000-0007-09
DECISION
Complainant timely filed an appeal from the Agency's 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the basis of national origin.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Professional Specialist Trainee (PST), EAS-16, at the Agency's Human Resources Shared Services Center (HRSSC) in Greensboro, North Carolina. Supplemental Report of Investigation (Supp. ROI), at 1-7. Complainant was a level 5 bargaining unit employee when she was accepted for the PST position, a new position created for the HRSSC. On or about April 1, 2006, Complainant was hired into the PST position under a mass-hiring initiative. Id. at 7.
Employees hired for the newly created PST position consisted of bargaining and non-bargaining unit employees, and also external hires. Id. Bargaining unit employees who are promoted to EAS positions reportedly receive a five-percent pay increase in accordance with the Agency's Employee and Labor Relations Manual (ELM). Id. Complainant, along with 41 other bargaining unit employees, accepted EAS-16 PST positions. Most bargaining unit employees, including Complainant, received a five-percent pay increase. Id. Complainant's salary for her previous craft position was $47,184, which was above the $41,600 minimum salary rate for the PST position. As a result, with the five-percent increase, Complainant received a salary of $49,543. Id. at 8. Three Caucasian employees received more than five-percent increases because their salaries reportedly would have fallen below the $41,600 minimum salary rate set for the PST position. Id. at 9. These three employees received pay increases of more than five percent in order to bring their salaries up to the $41,600 minimum salary rate. Id. at 7-8.
Complainant was subsequently promoted to the position of Personnel Processing Specialist (PPS), EAS-18, and was assigned to the Rural Carrier Unit. May 31, 2009, Report of Investigation (ROI). Complainant reportedly applied for details to the Systems Support Unit, but was not considered. Id. at 11-12. The Shared Services Support Specialist (Support Specialist) was responsible for detailing various specialists from other units to the Systems Support Unit. Id. at 14-15. The Support Specialist detailed four employees to the Systems Support unit from December 15, 2008, to March 13, 2009. Id.
On February 12, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic)1 when:
1. from September 15, 2008, to the present, she had not been considered for special assignment opportunities; and
2. she received a five-percent increase when promoted to the Professional Specialist Trainee (PST) position, while other trainees who had less knowledge and experience received higher percentage promotional increases.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).2 Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's July 19, 2011, motion for a decision without a hearing and issued a decision without a hearing on August 29, 2011. 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.
Specifically, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons, which Complainant failed to establish were pretext for discrimination. With regard to claim 1, the AJ noted that Complainant pointed to four assignments for which she should have been considered. The AJ noted that the Support Specialist did not select employees for details in response to any employee's request. The AJ noted that the Support Specialist selected employees for details because either (1) the employee possessed specific knowledge that the support staff needed to learn, or (2) the employee worked in a function area that needed someone to act as a super-user and resource for the team. The AJ noted that the Support Specialist selected the employee for the first assignment because the team needed help with job bidding and that employee had expertise in that area. The AJ noted that the Support Specialist selected the employee for the second assignment in order to provide that employee with expertise in complex processing because her unit was weak in that area. The AJ noted that the Support Specialist selected the employee for the third assignment in order to provide that employee with expertise related to canceling separations because his unit was weak in that area. The AJ further noted that the Support Specialist selected the employee for the fourth assignment in order to provide that employee with expertise in certain areas because her unit had several weaknesses.
With respect to claim 2, the AJ noted that starting pay for the PST position was a function of the selectee's employment status and bargaining unit status. The AJ noted that external hires and EAS employees were covered by different policies than bargaining unit employees like Complainant. The AJ noted that Complainant was not given an additional increase because her starting salary for the PST position was $49,543, beyond the $41,600 minimum hire amount of other employees. The AJ found that Complainant failed to proffer any probative evidence showing that the Agency's actions were racially discriminatory.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was the first one to apply for a detail to the Systems Support Unit, but was ignored. Complainant contends that the Agency gave details and assignments to employees who never requested reassignment. Complainant contends that she requested numerous times to be detailed, but the Agency denied her request each time. Complainant contends that the employees who received details were eventually promoted to the EAS-21 level. Complainant contends that her chance for upward mobility has been negatively affected due to the discrimination that she suffered. Complainant contends that years of service and salary amount should have nothing to do with a promotional percentage increase. Complainant also contends that she claimed the Agency delayed her second promotion from EAS-16 to EAS-17 in her complaint. Complainant contends that all internal candidates were promoted to the EAS-17 position effective March 3, 2007, except for her and a Caucasian employee. Complainant contends that the Agency failed to provide a legitimate reason to explain why her EAS-17 promotion was delayed until April 14, 2007. Complainant contends the Agency failed to correct the pay error for her, but made a conscientious effort to correct a similar pay error for an African-American employee.
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 EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, � VI.B. (Nov. 9, 1999) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint 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 Chap. 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
AJ's issuance of a Decision without a Hearing
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. Dep't of Def., 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).
After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, she was given an opportunity to respond, she was given a comprehensive statement of undisputed facts, and she had the opportunity to engage in discovery. In addition, the Commission finds that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor, as explained below. Therefore, we find that no genuine issues of material fact or credibility exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on national origin, the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the Support Specialist explained that he selected the employee for the first assignment because the Systems Support Team needed help with job bidding and that had expertise in that area. ROI, at 14-15. The Support Specialist explained that he selected the employee for the second assignment in order to provide that employee with expertise in complex processing because her unit was weak in that area. Id. The Support Specialist explained that he selected the employee for the third assignment in order to provide that employee with expertise related to canceling separations because his unit was weak in that area. Id. The Support Specialist explained that he selected the employee for the fourth assignment in order to provide that employee with expertise in certain areas because her unit had several weaknesses. Id.
Regarding claim 2, the Manager of Human Resources (HR) explained that all bargaining unit employees including Complainant received a five-percent pay increase upon receiving the promotion to the PST position. Supp. ROI, at 6-8. The Manager of HR further explained that three Caucasian employees received more than a five-percent increase because their salaries reportedly would have fallen below the $41,600 minimum salary rate set for the PST position. Id. These three employees received pay increases of more than five percent in order to bring their salaries up to the $41,600 minimum salary rate. Id. The Manager of HR explained that with the five-percent increase, Complainant received a salary of $49,543, which was more than the minimum salary rate of other employees entering the PST position. Id.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Complainant contends that the Agency gave details and assignments to employees who never requested reassignment. Complainant contends that she requested numerous times to be detailed, but the Agency has denied her requests. Complainant contends that the employees who received details were eventually promoted to the EAS-21 level. Complainant also contends that the Agency failed to provide a legitimate reason to explain why her EAS-17 promotion was delayed until April 14, 2007.
We find that that Complainant has failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. Notwithstanding Complainant's contentions, we can find no evidence contained in the record that any of the Agency's actions were motivated by discriminatory animus here. We can find no evidence that the Agency's failure to detail Complainant to the Systems Support unit was motivated based on Complainant's Hispanic national origin. Further, the record reflects that the starting pay for the PST position was a function of employment status and bargaining unit status. There is no dispute that Complainant received a salary of $49,543, which was more than the minimum salary rate that other employees received for the PST position.3 As such, like the AJ, we find that Complainant has failed to establish pretext here.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, adopting the AJ's decision.
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 21, 2013
Date
1 Although Complainant identified race (Hispanic) as a basis on her complaint, the Commission considers the term "Hispanic" to denote a national origin rather than a race.
2 On March 9, 2009, the Agency issued a Partial Acceptance/Partial Dismissal, which dismissed a portion of Complainant's complaint, including claim 2. On April 14, 2011, the AJ issued an order reversing the dismissal of claim 2. Therein, the AJ ordered an expedited supplemental investigation with respect to claim 2. The Agency completed the supplemental investigation on June 15, 2011.
3 While Complainant contends that her claim that her EAS-17 promotion was delayed was not addressed, we note that the Agency issued a Partial Acceptance/Partial Dismissal that dismissed this claim, which the AJ affirmed in her April 14, 2011, order. Therein, the AJ found that the Agency properly dismissed this claim for untimely EEO Counselor contact. Because Complainant does specifically raise the dismissal of this claim on appeal, the Commission declines to address it. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), 9-10 (Nov. 9, 1999) provides that the Commission has the discretion to only review those issues specifically raised on appeal.
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0120120123
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120123