0120131059
06-06-2013
Mayra D. Temes, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Mayra D. Temes,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131059
Hearing No. 510-2011-00406X
Agency No. 4H-335-0012-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 6, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Part-Time Flexible (PTF) Letter Carrier at the Agency's Orlando, Florida Mall Annex.
On January 7, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of national origin (Hispanic), sex (female), age (over 40), and in reprisal for prior EEO activity when1:
on October 6, 2010, she was informed she was permanently assigned to another station.
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On November 30, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In his decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of national origin, sex and age discrimination.2 The AJ found that even assuming Complainant established a prima facie case of national origin, sex and age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Specifically, the AJ found that due to the operational needs of the service, the Flat Sequencing System (FSS) was about to begin and because Complainant was the junior PTF for the Agency's Sand Lake Post Office, Complainant was reassigned to the Orlando Mall Annex.
The AJ noted that under the terms of an Agency contract, a PTF Letter Carrier is hired pursuant to the procedures the Agency may establish, and shall be assigned to regular schedules of less than forty (40) hours a week or shall be available to work flexible hours as assigned by the Agency during the course of the service week. The AJ noted that from October 1, 2010 to December 4, 2010, Complainant was the least senior PTF Letter Carrier at the Sand Lake Post Office and in the entire city of Orlando. On October 6, 2010, Complainant was verbally informed that she would be assigned to the Orlando Mall Annex effective on October 9, 2010. The record reflects that Complainant's reassignment to the Orlando Mall Annex was delayed due to her mini-bid. By memorandum dated November 18, 2010, Complainant was notified that she would be assigned to the Mall Carrier Annex effective December 4, 2010.
The AJ noted that that the Manager, Customer Services Operations for the Orlando Mall Annex, stated that he was the deciding official to reassign Complainant from the Sand Lake Post Office to the Orlando Mall Annex "based on staffing needs of the Postal Service and Complainant's seniority." The Manager stated that during October 2010 to November 2010 time period, the Orlando Mall Annex was understaffed and he sent one to three Temporary Employee (TE) carriers on a daily basis to the Orlando Mall Annex to assist with the delivery of the mail. Specifically, the Manager stated that he sent one to three TE carriers from other facilities to the Orlando Mall Annex "on 21 days in October" and "on 19 days in November 2010."
Further, the Manager stated that during December 2010 time period, there were three vacant bids at the Orlando Mall Annex. The Manager stated that in making staff decisions, he determined "it would be more efficient to reassign a Part-Time Flexible Letter Carrier to the station than to reassign a TE carrier." The Manager also stated that with the implementation of the FSS "I believed that the contracts of many TE carriers would not be renewed. Rather than assign a TE carrier to the Orlando Mall Annex, whose contract might not be renewed, I reassigned a Part-Time Letter Carrier who could stay at the station and learn the routes."
The AJ noted that Complainant alleged that the fact she was the most junior PTF Letter Carrier her lack of seniority over other carriers should have no bearing on management's decision to reassign her instead of more senior PTF Carriers because "PTF Carriers Are Not Transferred On The Basis of Juniority/Seniority." In support of her assertions, Complainant asserted that a named female employee was transferred prior to her reassignment. The AJ further noted that the named female employee was thirty-one years old at the time of her reassignment from the Agency's Lockhart Branch to the Mall Carrier Annex, effective August 28, 2010. The AJ noted that the record reflects that both Complainant and the named employee were the most junior PTF Letter Carriers at their respective stations.
Further, the AJ found that "even if it were to be assumed that the Agency is not obligated to reassign PTFs on the basis of their seniority or lack thereof, there is nothing unlawful about using its employees' union seniority as the basis for a reassignment. Moreover, the AJ determined that Complainant offered no valid reason as to why the Agency should have reassigned employees to the Mall Carrier Annex from only one of its branches because "there is much logic to the Agency reassigning the more junior employees from various Branches so as not to deplete its work force in only one Branch."
Complainant, on appeal, argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argues that the AJ improperly denied her motion to reinstate her dismissed basis of retaliation. Complainant further argues that the AJ erred in not granting her motion for sanctions because the Agency withheld documents responsive to her discovery requests. Complainant also argues that the AJ erred by failing to consider her Supplemental Reply "with 'newly discovered evidence:' a declaration of [a named union steward], regarding the June and July 2011 seniority reports of PTF carriers in the Orlando area."
In response, the Agency argues that the AJ properly denied Complainant's motion for sanctions because at that time "discovery was closed and Appellant failed to file any more motion to compel regarding Requests Nos. 8 and 14 and denied the motion for sanctions." The Agency further argues that Complainant's supplemental filing because it was filed after the issuance of the AJ's November 30, 2012 decision. The Agency also argues that the supplemental reply does not contain "newly discovered evidence" because it was produced to her during discovery.
The instant appeal followed.
ANALYSIS AND FINDINGS
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, 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.
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination by summary judgment. Complainant has not identified any material facts in dispute which require resolution through a hearing. The AJ's decision properly summarized the relevant facts established during the investigation, and referenced the appropriate regulations, policies, and laws. Complainant did not prove, by a preponderance of the evidence, that the decisions made here were motivated by discriminatory animus toward Complainant's national origin, sex or age. Finally, we find the record contains no evidence of improprieties by the AJ in various rulings attendant to the disposition of the instant case.
Based on our careful review of the record and consideration of all arguments presented on appeal, the Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.
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 6, 2013
__________________
Date
1 The record reflects that in its Acceptance for Investigation dated January 24, 2011, the Agency dismissed reprisal as a basis finding that Complainant had not engaged in protected EEO activity. The Agency found that Complainant was instead alleging retaliation for engaging in union activity.
2 The record reflects that the AJ denied Complainant's motion to reinstate the basis of reprisal after finding that Complainant had not participated in any prior protected EEO activity.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120131059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131059
7
0120131059