0120093168
03-23-2011
Marie S. Martija, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Marie S. Martija,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120093168
Hearing No. 550-2009-00196X
Agency No. 1F-942-0003-09
DECISION
On July 18, 2009, Complainant timely filed an appeal from the Agency's
June 25, 2009, 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 on appeal are: (1) whether the EEOC Administrative
Judge (AJ) properly issued a decision without a hearing; and (2) whether
the AJ correctly found that Complainant failed to demonstrate that the
Agency's proffered explanation for abolishing her Data Entry Operator
position was pretext for discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Data Entry Operator, PS-5, at the Agency's Bulk Mail Center (BMC)
in San Francisco, California. Report of Investigation (ROI), Ex. 1,
at 121. As a result of a reduction in mail volume, many employees at
the San Francisco BMC had their schedules and work duties changed. ROI,
In-Plant Support Manger Aff., at 103. In a letter dated October 23,
2008, Complainant was notified by the Plant Manager that her Data Entry
Operator position would be abolished effective November 22, 2008. ROI,
Ex. 3, at 123. The October 23, 2008, letter noted, in pertinent part:
The San Francisco BMC is in the process of implementing a condensed
operational window that will match changes that have already occurred in
transportation, mail flow, and workload. As a result of these changes,
it will be necessary to reconfigure and repost a number of bids, abolish
others and excess clerks from certain sections. . . . A number of
reconfigured and new bid assignments will be posted on October 22, 2008.
Id.
Two male employees (E1 and E2, race and national original unknown)
were also issued the October 23, 2008, letter. ROI, Ex. 8, at 135; ROI,
Ex. 9, at 136. In accordance with the letter, the Agency abolished
Complaint's position. Thereafter, the Agency awarded Complainant a new
bid position. ROI, Plant Manager's Aff., at 116.
On December 6, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of national origin
(Filipina) when, on September 18, 2008, she was informed that her job
as a Data Entry Operator would be abolished and she would be excised
from her current section effective November 8, 2008.
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). Complainant
timely requested a hearing. The AJ assigned to the case issued a Notice of
Intent to Issue a Decision without a Hearing on May 26, 2009, directing
the parties to respond. After receiving no response from Complainant,
the AJ issued a decision without a hearing in favor of the Agency on
June 17, 2009. Specifically, the AJ noted that, even assuming that
Complainant established a prima facie case of discrimination based on
national origin, the Agency articulated legitimate, nondiscriminatory
reasons for its actions; namely, that every job on every tour within the
San Francisco BMC was reviewed to determine its effect on productivity,
and positions not needed or authorized were abolished. Id. at 7-8. The
AJ noted that Complainant failed to establish that the Agency's proffered
reasons were a pretext for discrimination. Id. at 8.
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.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges for the first time that the Agency
violated the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d)
et seq. Specifically, Complainant contends that male employees
earned more compensation than her even though she performed equal
duties to them. Complainant also alleges that notwithstanding the
Agency's contention, E1 and E2 in fact were never reassigned from their
positions.
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),
Ch. 9, � VI.B. (providing that an administrative judge's "decision to
issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)]
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 Chapter 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
Summary Judgment
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 AJ's intent
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
Because we find that no direct evidence of discrimination exists, we
turn to Complainant's burden to prove she was discriminated against as
alleged. To prevail in a case 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). She must
generally establish a prima facie case by demonstrating that she 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). The prima facie inquiry may be dispensed with
in this case, however, because the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is a pretext for discrimination. Reeves
v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Assuming, arguendo, that Complainant established a prima facie case
of discrimination based on national origin, we find that the Agency
articulated legitimate, nondiscriminatory reasons for its actions, as set
forth above. Specifically, management abolished Complainant's position due
to a significant reduction in mail volume at the San Francisco BMC. ROI,
In-Plant Manager Aff., at 103. Management determined that Complainant's
position was not meeting the needs of the Agency and was no longer
needed. Id.
Complainant now bears the burden of proving by a preponderance of
the evidence that the Agency's articulated reasons were a pretext for
discrimination. Complainant may do this by showing that the Agency's
proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
In an attempt to show pretext, Complainant contends that E1 and E2
were never reassigned from their positions as the Agency alleges. Even
assuming that E1 and E2 were never actually reassigned on October 23,
2008, there is no dispute that the San Francisco BMC was restructuring at
that time, affecting work duties and schedules of various employees. ROI,
In-Plant Support Manger Aff., at 103. We also note that Complainant was
awarded a new bid position after her Data Entry Operator position was
abolished. ROI, Plant Manager's Aff., at 116.
Accordingly, we find that Complainant has not shown that a genuine
issue of material fact exists so as to warrant a hearing. We further
find that, drawing all justifiable inferences in favor of Complainant,
she has failed to show that the Agency's explanation for its actions is
a pretext for discrimination.1
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 implementing 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 (Nov. 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
March 23, 2011
Date
1 To the extent that Complainant alleges that the Agency violated
the Equal Pay Act, the Commission has held that it is not appropriate
for a complainant to raise new claims for the first time on appeal.
See Hubbard v. Dep't of Homeland Security, EEOC Appeal No. 01A40449
(Apr. 22, 2004). Should Complainant wish to pursue this claim, she
is advised to contact an EEO counselor within 15 days of the date on
which this decision becomes final. For timeliness purposes, the date
of Complainant's initial contact with the EEO Counselor will be deemed
to be the date on which this appeal was filed.
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0120093168
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093168