Ramona D. Lopez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionMar 11, 2005
01a40941 (E.E.O.C. Mar. 11, 2005)

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.