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