Norma Cherry, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A24027_r (E.E.O.C. Oct. 27, 2003)

01A24027_r

10-27-2003

Norma Cherry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Norma Cherry v. United States Postal Service

01A24027

October 27, 2003

.

Norma Cherry,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A24027

Agency No. 1-A-102-0009-99

Hearing No. 160-A0-8171X

DECISION

Complainant appealed to this Commission from the agency's June 26,

2002 final order concerning her employment discrimination complaint.

The agency's final order adopted the June 17, 2002 summary judgment

decision of an EEOC Administrative Judge (AJ). In his decision, the AJ

found that complainant had not been discriminated against.

The record reveals that complainant, a Mail Processor at the agency's

Morgan Processing & Distribution Center (P&DC), filed a formal complaint

on December 14, 1998, alleging discrimination on the bases of race

(African-American), sex (female), color (black), and reprisal for prior

EEO activity. The agency accepted complainant's complaint, identifying

her claims as alleging discrimination when:

Effective March 19, 1998, complainant's daily overtime was canceled;

On April 29, 1998, complainant was informed by her supervisor that she

was assigned to Pay Location (PL) 872, which was contrary to the vice

sheet dated April 29, 1998, and complainant was informed the supervisor

requested a male employee; and

On June 3, 1998, complainant was assigned to PL 877, and upon

complainant's assignment to PL 877, the overtime ended for that unit.

At the conclusion of the investigation, complainant requested a hearing

from an AJ. On January 3, 2001, the AJ conducted a "Motion Hearing" to

determine whether summary judgment was appropriate. During the hearing,

the AJ determined that the complaint was improperly defined. Both parties

agreed that the agency's definition in claims (2) and (3) was incorrect,

and could be included in a single claim. See Motion Hearing Transcript,

at 102, 106. In his subsequent decision, the AJ redefined the complaint

as alleging discrimination on the bases of race, sex, and reprisal when:

Effective March 19, 1998, complainant's daily overtime was canceled; and

Complainant was reassigned to PL 877 from PL 872, resulting in the

forfeiture of overtime.

Once redefined, the AJ found that complainant failed to establish a prima

facie case in either claim. With regard to claim (A), the AJ explained

that the overtime for all employees in PL 872 was reduced, but was

not canceled. In support of his finding, the AJ noted that complainant

received more overtime than any other employee in PL 872 between March

and June 1998. Although complainant claimed that the overtime figure

cited by the agency only included "nonscheduled" or "penalty" overtime,

as opposed to "daily overtime" that complainant claimed she was denied,

the AJ found that complainant provided no evidence to support her claim.

Further, the record reveals that all employees in PL 872 were reduced

from two hours of overtime to one hour and forty-five minutes. Since this

reduction was applied to all mail processors in PL 872, the AJ found that

complainant failed to establish an inference of discrimination in claim

(A).

With regard to claim (B), the AJ explained that complainant was the

successful bidder on a PL 872 mail processor position, but was reassigned

to PL 877. He found that "complainant does not dispute that the pay

locations at the [facility] were merely administrative designations, and

that complainant's bid position as a level PS-4 mail processor allowed

the agency flexibility to transfer mail processors to various units

at will." Further, the AJ found that no comparison could be drawn from

the coworker complainant cited as receiving more favorable treatment,

because the coworker worked a different schedule on different machines

than complainant. Finally, the AJ found that complainant was reassigned

for "administrative reasons," not because of discrimination.

To the extent complainant alleged reprisal, the AJ found that complainant

failed to establish a prima facie case. Specifically, the AJ found

that complainant's prior EEO activity occurred in 1993, but none of the

alleged responsible officials had knowledge of this activity. Further,

the AJ explained that complainant provided no evidence to suggest the

officials were aware of complainant's prior EEO activity. Therefore,

the AJ concluded that complainant failed to establish a prima facie case

of reprisal discrimination.

On appeal, complainant argues that although the particular PL number

was an administrative designation, the agency's decision to move her

from working on Lennox Hill mail in PL 872, to working on Times Square

mail in PL 877, affected her employment. Complainant explains that she

has always worked on mail bound for Lennox Hill, although a number of

different PL's have been assigned to Lennox Hill mail. In complainant's

move to PL 877, however, she was physically moved to a different work

location, albeit in the same building. She contends this move violated

her bid assignment to work on Lennox Hill mail.

Complainant compiled a hand-written list of the overtime she accrued from

March to December 1998. Therein, complainant identifies that she received

between twenty-five minutes and an hour and three-quarters of "penalty"

overtime almost every day. Additionally, she occasionally received

between one-half and one and three-quarters hours of other overtime.

After complainant was reassigned to PL 877, she continued to receive

overtime, according to this list. Further, this list reveals that

complainant bid back into PL 872 as a manual clerk in November 1998.

After returning to PL 872, complainant began to receive other overtime

more frequently, but rarely received any penalty overtime.

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.

As an initial matter, the Commission notes that the AJ properly

defined complainant's claims. The claims as identified by the agency

in its notice of acceptance, report of investigation, and final order,

is incorrect. Therefore, the present decision will only review whether

genuine issues of material fact existed in claims (A) and (B) as defined

by the AJ.

To establish a prima facie case of discrimination, complainant must

present facts that, if unexplained, reasonably give rise to an inference

of discrimination; i.e., that a prohibited consideration was a factor

in the adverse employment action. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). Such facts must show that complainant

is a member of a protected group and was subjected to an adverse

employment action. Packard v. Department of Health and Human Services,

EEOC Appeal Nos. 01985494, 01985495 (Mar. 22, 2001). Complainant also

must show that she was treated less favorably than other similarly

situated employees outside of her protected group, or must present

other noncomparative evidence to support an inference that the agency

was motivated by unlawful discrimination. O'Connor v. Consolidated Coin

Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on

O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002,

at n.4 (Sept. 18, 1996).

With respect to claim (A), the evidence indicates that the overtime

available to all employees was reduced. Although complainant's overtime

was reduced, she continued to receive more overtime than any of her

coworkers. Complainant has failed to provide any evidence to indicate

otherwise. Accordingly, the AJ's decision was proper. Complainant has

not shown that the alleged cancellation of the overtime was motivated

by discrimination.

In claim (B), complainant has not shown that she was treated less

favorably than other employees. Her own submission on appeal reveals

that complainant continued to receive overtime when she was reassigned

to PL 877. Further, complainant did not lose any pay, benefits,

seniority, or other term of her employment as a result of this move.

Complainant has not submitted any evidence to indicate that other

employees who were allowed to remain in PL 872 received more overtime.

Therefore, complainant has not proven the inference of discrimination

necessary to establish a prima facie case. Furthermore, complainant

has not shown that her reassignment to PL 877 from PL 872 was motivated

by discrimination.

CONCLUSION

The Commission finds that the Administrative Judge's summary judgment

decision was proper, as no questions of material fact exist. Complainant

has failed to establish a prima facie case that she was subjected to

unlawful discrimination. Accordingly, the agency's final order finding

no discrimination 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 27, 2003

__________________

Date