01a40941
03-11-2005
Ramona D. Lopez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Ramona D. Lopez v. United States Postal Service
01A40941
March 11, 2005
.
Ramona D. Lopez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A40941
Agency No. 1E-853-0083-00
Hearing No. 350-2001-08345X
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 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 complainant, a Mail Processor, Part Time Flexible,
at the agency's Processing and Distribution Center, located in Phoenix,
Arizona, filed a formal complaint alleging that she was discriminated
against on the bases of national origin (Hispanic), sex (female),
disability and in reprisal for prior EEO activity [arising under Title
VII] when:
she was denied FMLA leave prior to February 14, 2000;
on April 11, 2000, she was issued a Letter of Warning (LOW); and
she was disqualified from the Associate Supervisory Program (ASP)
on or around August 1, 2000.<1>
At the conclusion of the investigation, complainant was provided 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.<2>
In his decision, the AJ found that the agency articulated a legitimate,
nondiscriminatory reason for disqualifying complainant from the ASP;
namely, she was disqualified because a review of her disciplinary record
over the two preceding years indicated that complainant had failed to
achieve the acceptable standard for discipline suitability. The AJ found
that complainant presented no specific, substantive pretextual evidence
which created a genuine issue of material fact or genuine credibility
with respect to the agency's articulated reason. The agency's final
order implemented the AJ's decision. Complainant makes no new arguments
on appeal. The agency requests that we affirm the final order.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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 a hearing is not appropriate.
In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In the instant case, assuming arguendo that complainant is an individual
with a disability pursuant to the Rehabilitation Act, and that she
otherwise established a prima facie case of discrimination on the
alleged bases, the agency has articulated a legitimate, nondiscriminatory
reason for its action; namely, complainant, was disqualified from the
ASP because a review of her disciplinary record over the two preceding
years demonstrated that she failed to achieve the acceptable standard
for discipline suitability. Additionally, at the time of the review,
complainant had active discipline in her record; namely, she had been
issued a Letter of Warning, dated March 10, 2000, for the charge of
�Failure to Report for Duty/Failure to follow Proper Notification
Procedures, Resulting in AWOL.� ROI, Ex. 4, 2-3. Complainant has not
presented evidence, beyond her bare assertions, that discriminatory or
retaliatory animus motivated the decision to disqualify her from the ASP.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine dispute
of material fact exists. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). We find that the AJ's decision
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we conclude
that complainant failed to present evidence that the agency's actions
were motivated by discriminatory animus toward her protected classes.
Therefore, we AFFIRM the agency's final order.
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
March 11, 2005
__________________
Date
1 The record indicates that the ASP is designed to recruit and select
qualified individuals to fill Associate Supervisor, EAS-15, positions.
Candidates are evaluated based on their supervisor's evaluation, sick
time/leave of absence records, disciplinary records, safety records,
and any other information considered relevant to a personal suitability
determination by the Review Committee. ROI, Ex. 10, at 3.
2 The AJ affirmed the agency's dismissal of issue (1) pursuant to
29 C.F.R. � 1614.107(a)(2) and of issue (2) pursuant to 29 C.F.R. �
1614.107(a)(7). Complainant has not appealed the dismissals of these
two issues, accordingly, they will not be addressed in this decision.