01A35354_r
10-07-2004
Janice Folsom, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Janice Folsom v. United States Postal Service
01A35354
October 7, 2004
.
Janice Folsom,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35354
Agency No. 1C-225-0006-02
Hearing No. 120-2003-00306X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant, a former Data Conversion Operator at the agency's Salem
Remote Encoding Center (REC) in Salem, Virginia, filed a formal EEO
complaint on June 3, 2002. Therein, complainant claimed that she was
the victim of unlawful employment discrimination on the bases of age
(D.O.B. 5/5/61) and in reprisal for prior EEO activity when on February
22, 2002, she was separated from agency employment while a Part-Time
Flexible Clerk (PTF) was retained.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency thereafter filed a Motion to
Dismiss or in the alternative, an Agency's Memorandum in Support of
Motion for Summary Judgment.
In its motion, the agency requested that the AJ issue a decision
without a hearing in favor of the agency, finding no discrimination.
The agency argued that complainant failed to establish a prima facie case
of age and reprisal discrimination. Specifically, the agency found that
complainant failed to demonstrate that similarly situated employees not
in complainant's protected classes were treated more favorably under
similar circumstances.
The agency also found that assuming arguendo complainant established
a prima facie case of age and reprisal discrimination, management
articulated a legitimate, non-discriminatory reason which complainant
failed to show was pretextual. Specifically, the agency argued that on
June 26, 2001, an announcement was made that the Salem Remote Encoding
Center was scheduled to close. The agency further argued that fifty-four
Data Conversion Operators, including complainant, were affected by the
closure. The agency argued that between July 2001 and January 2002,
complainant was given multiple local transfer opportunities. The agency
noted that complainant's first choice for transfer was a Mark-up Clerk
position; but that because complainant failed to pass the requisite
typing test, and based on the urgency to fill the Mark-up position and
the National Testing Administration Center (NTAC) requirement for a
14-day period between tests, complainant was considered ineligible for
the subject position.
The agency argued that effective February 22, 2002, complainant was
involuntarily separated from agency employment due to the closing of the
facility to which she was assigned. The agency argued that fifty-four
Data Conversion Operators were displaced upon the closing of the Salem
Remote Encoding Center: seventeen through voluntary transfer; nineteen
through involuntary transfer; one through resignation; one was accepted
into a training program; and the remaining sixteen, including complainant,
declined all transfer opportunities and took the severance package.
Furthermore, the agency stated that out of the fifteen remaining employees
who were involuntarily separated (excluding complainant), five employees
were younger and ten were older than complainant.
The record contains a copy of the Personnel Services Manager's affidavit,
wherein the Manager stated that complainant �would have been reassigned to
the PTF CFS clerk in Roanoke, VA post office effective 9-22-01 pending
her successfully passing the 715 typing examination and this is why
she was not reassigned.� The Manager stated that on February 15, 2002,
a REC Manager notified complainant of her involuntary reassignment to a
fill-time mail processor, PS-4 position, at the agency's Charlotte P &
DC, effective February 23, 2002, but that complainant declined this
involuntary reassignment. The Manager stated that on February 15,
2002, complainant �voluntarily chose to decline the full time offer in
Charlotte, NC. She initialed by a statement that said �I decline this
involuntary reassignment. I understand that by declining this involuntary
reassignment that I will be involuntary separated from the Postal Service,
effective the first full pay period after receipt of my declination.'�
With respect to complainant's claim that she was separated from agency
employment while a Part-Time Flexible Clerk (PTF) was retained,
the Manager stated that the PTF Clerk, identified by complainant,
was selected for a PS-3 full-time Labor custodian position based on a
voluntary request for transfer. The Manager stated that the difference
between complainant and the named PTF Clerk is that complainant was
offered a full-time position but declined it; however, the named PTF
Clerk was approved a voluntary reassignment. The Manager stated that
he was not aware that complainant requested a voluntary transfer to
full-time Labor custodian position.
Regarding complainant's claim that she was not reassigned to a PTF Sales,
Services and Distribution Associate at the agency's Salem VA Post Office
in September 2001, the Manager stated it was the only position on the
posting that complainant selected but that during an interview with the
Postmaster, complainant declined the position.
On August 20, 2003, the AJ granted the agency's motion to dismiss.
Without elaboration, the AJ determined that the agency properly set
forth the undisputed facts and applicable law in its �Motion for Decision
Without a Hearing,� incorporated the Motion in her decision, and found
no discrimination.
The agency implemented the AJ's decision in a final action dated August
29, 2003. It is this decision that is the subject of the instant appeal.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
The Commission finds that the evidence supports a determination that
the agency articulated legitimate, non-discriminatory reasons for
its employment actions. The agency determined that complainant was
separated from agency employment based on the closure of the Salem
Remote Encoding Center, and that fifty-four Data Conversion Operators,
including complainant, were affected by the closure.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Further, construing the evidence to be most favorable to complainant, we
note that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes. Accordingly, the agency's final action implementing
the AJ's decision finding no discrimination was proper and 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
October 7, 2004
__________________
Date