0120101710
08-05-2010
Susan Race, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Susan Race,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120101710
Hearing No. 530200700411X
Agency No. 4A105003707
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 11, 2010 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUES PRESENTED
In her complaint filed April 11, 2007, Complainant alleged that the Agency discriminated against her on the bases age, (54) and perceived mental disability (brain surgery)1 when:
1. On or about February 5, 2007, she became aware that another employee had received a detail opportunity to the Safety Office that was never posted; and
2. On or about March 29, 2007, she became aware that another employee was being paid at a higher level for doing essentially the same work as Complainant.
BACKGROUND
Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 5, 2010, the AJ issued a decision without a holding a hearing, finding no discrimination. The Agency's final action implemented the AJ's decision. The record indicates that at the relevant times of the instant complaint, Complainant was a craft employee and was employed as a PS-6 Training Technician with the Agency's Human Resources Postal Employee Development Center (PEDC). In 2005, Complainant was out of work for a health condition which required surgery to remove a tumor from her brain. The record further indicates that on February 5, 2007, Complainant learned that another employee (EE), had received a detail to the Agency's Safety Office to the position of Safety Specialist. The record also indicates that the detail was not advertised to other Agency employees. According to the Agency EE was a limited duty employee who had been injured on the job. The record indicates that EE was detailed to the Safety Specialist position when the functions of her current position were removed from the Training Department to the Safety Office as part of a national Agency reorganization. The Agency indicates that at the time of the detail, EE was already performing the duties required of the Safety Specialist position.
Complainant further alleges that on March 29, 2007, she learned that another employee (EE1) was being paid at a higher level for doing the same work as Complainant. The record indicates that EE1 was limited duty employee who had been injured on the job and who worked as a full-time letter carrier at the Agency's Port Chester Post Office. The record further indicates that on occasion, EE1 served as Acting Human Resources Specialist. According to the Agency, the position of Human Resources Specialist was an Executive Administrative Schedule (EAS), non-bargaining unit position. The record indicates that the Agency approved the higher pay for EE1 on February 6, 8 and 26, 2007; March 12, 13 and 15 2007; and April 25, 26 and 27, 2007.
According to the Agency, the nature of the work in its PEDC division was such that some job duties were performed by both EAS employees such as the Safety Specialist and Human Resources Specialist positions, as well as by craft employees like Complainant. For example, duties such as scheduling training could be performed by both EAS and craft employees. However, the Agency indicates that duties such as planning the actual training would fall on EAS employees only. The record indicates that Complainant had not previously performed the duties of an EAS employee.
CONTENTIONS ON APPEAL
Complainant makes no contentions on appeal regarding the AJ's findings or the Agency's final action.
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. The Commission finds that the grant of summary judgment was appropriate, as no genuine dispute of material fact exists.
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review, the Commission finds that assuming arguendo, that Complainant was able to establish a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for the alleged discriminatory conduct in this matter. Complainant argues that a similarly situated employee, EE was given a detail which was not posted because she was younger than Complainant. However, the record indicates that EE was detailed to the position of Safety Specialist in the Agency's Safety Office only after the duties of her position were transferred to the Safety Office as part of a national organization of the Agency. The record indicates that Complainant's duties were not similarly transferred as part of the reorganization. Moreover, the record indicates that there was no policy requiring the Agency to advertise the detail. Regarding Complainant's claim that she did not received higher level pay for work she performed, the record establishes that EE1 was only paid at a higher level pay on the specific dates that he performed EAS functions in the position of Acting Human Resources Specialist. Complainant failed to demonstrate that she performed EAS duties for which she was not compensated. The Commission finds further that Complainant failed to demonstrate that the Agency's articulated reasons for its conduct was pretext for unlawful discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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
August 5, 2010
__________________
Date
1 For purposes of analysis, the Commission assumes without finding, that Complainant is an individual with a disability. 29 C.F.R. � 1630.2 (g) (i).
??
??
??
??
2
0120101710
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101710