01a54153
11-29-2005
Jeanne M. Viola, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Jeanne M. Viola v. United States Postal Service
01A54153
November 29, 2005
.
Jeanne M. Viola,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A54153
Agency No. 4F-950-0125-03
Hearing No. 370-2005-00155X
DECISION
Complainant timely initiated an appeal from the agency's final order
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that, during the relevant period, complainant
was employed as a PS-5, Full Time Distribution Clerk at the agency's
St. James Park Post Office in San Jose, California. Complainant filed
a formal EEO complaint on November 20, 2003, alleging that the agency
discriminated against her on the basis of race (Caucasian) when:
(1) she was required to work the general delivery window from the
beginning tour to closing while another employee with general delivery
duties did not; and
unlike her co-workers, she was required to have a bell at her window.
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 AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish that she was
subjected to unlawful employment discrimination on the basis of race.
Specifically, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. In particular, the AJ noted
that the comparative employee (CW1: Asian) is on limited duty with
medical restrictions. The AJ also noted that the bell that is located
at the general delivery window was in place before complainant starting
working at the window and that the bell is there for the convenience
of customers in order to give notice of their presence when no clerk is
otherwise at the window. The AJ further noted that complainant failed
to demonstrate that the reasons proffered by the agency were mere pretext
to mask unlawful employment discrimination.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ failed to view the evidence in the
light most favorable to her. Complainant also contends that the business
justification evidence proffered by the agency is unworthy of credence.
In particular, complainant argues that management's testimony was
identical which is indicative of �testimonial collusion.� In response,
the agency restates the position it took in its FAD, and requests that
we affirm its final order.
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, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider a decision without a hearing
only upon a determination that the record has been adequately developed
for summary disposition.
The Administrative Judge concluded that, other than complainant's own
subjective belief that she was discriminated against, she presented no
evidence from which a reasonable fact-finder could conclude that the
agency's actions were based on her race. The Administrative Judge thus
determined that a hearing was not required because there were no genuine
issues of material fact in dispute.
After a careful review of the record, the Commission finds that grant of
a decision without a hearing in the agency's favor 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. In reaching this conclusion, we note
that the uncontroverted record shows that CW1 was on limited duty due to
medical restrictions. The record also establishes that the bell located
at the general delivery window had been there approximately six years
and preceded complainant's arrival. We also note that the bell was put
in place to enhance customer service. Further, construing the evidence
to be most favorable to complainant, we note that complainant failed
to present evidence that her protected class was a motivating factor in
any of the agency's actions. Accordingly, we affirm the agency's final
order finding no discrimination.
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
November 29, 2005
__________________
Date