0120091026
02-03-2011
Teresa D. Vencebi, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Teresa D. Vencebi,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091026
Hearing No. 530-2008-00158X
Agency No. 4A-088-0063-07
DECISION
Complainant filed an appeal from the Agency's November 26, 2008 final
order concerning her equal employment opportunity (EEO) complaint alleging
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. For the
following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales and Service Distribution Associate at the Agency's Lambertville
Post Office in Lambertville, New Jersey. On August 22, 2007, Complainant
filed an EEO complaint alleging that the Agency discriminated against
her on the basis of reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when:
On April 3, 2007, Complainant was notified that she was not accepted
into the Associate Supervisory Program (ASP).
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and received responses
from both parties to her October 8, 2008 Notice of Intent to Issue a
Decision Without a Hearing. Over Complainant's objections, the AJ issued
a decision without a hearing on November 17, 2008.
In her decision, the AJ found the material facts were not in dispute and
that a hearing was not warranted. Specifically, the AJ found no dispute
that Complainant had previously filed complaints of discrimination against
the Agency in June 2006 and August 2006. Further, the AJ found that H1,
the Agency's Human Resources Manager, and H2, the ASP Coordinator, were
aware of Complainant's prior EEO complaints. AJ's Decision Without
a Hearing, (AJ Decision) November 17, 2008, at 2. For the sake of
argument, the AJ found that Complainant established a prima facie case
of reprisal discrimination in that she participated in the EEO process in
2006, and that in 2007, she applied for the ASP program. Complainant was
not selected for the ASP program and the AJ found that the officials
responsible for the Agency's actions were aware of Complainant's prior
EEO activity. Id. at 8.
The AJ considered that in April 2005, an Arbitrator's decision ordered the
Agency to reinstate Complainant after Complainant's grieved the Agency's
decision to remove her in 2004. In the Arbitrator's order appears the
following language:
The Postal Service will have the option to assign the Grievant to
positions not involving accountability for funds and to consider her
ineligible to work at any position involving accountability for funds
for a period not to exceed three (3) years.
Id. at 3. The AJ found no dispute that after Complainant applied for
the ASP, she was scheduled for an interview on April 5, 2007, that she
did not attend. The AJ acknowledged that Complainant did not attend the
interview because she had received a letter from H1, the Human Resources
Manager, dated March 29, 2007, in which H1 informed Complainant that he
would not grant her request to enter the ASP because she had previously
embezzled funds from the Agency. Id. at 9. Accordingly, Complainant
was not selected to participate in the ASP for which she applied in 2007.
Id.
The AJ found that the Agency articulated legitimate, non-discriminatory
reasons for its actions, namely, H1 relied on the language in the
Arbitrator's order when he rejected Complainant's request to enter
the ASP. Id. at 9. The AJ found that Complainant did not show that
the Agency's reasons were a pretext to mask reprisal discrimination.
The Agency subsequently issued a Final Order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Agency Final Order (Ag Order), November
26, 2008.
On appeal, Complainant disputes as pretext the Agency's reasons for
denying her entrance into the ASP in 2007 because when she applied for
the ASP in 2006, she was told that she was not selected because of her
sick leave balance. Complainant states that she learned during mediation
of her prior complaints, that H2 acknowledged Complainant would find
her career "going nowhere" if she files grievances and EEO complaints.
Complainant's Appeal of Agency's Final Decision, December 29, 2008,
at 1.
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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition to
a motion for a decision without a hearing).
In the instant case, we find the AJ properly issued her decision without
a hearing. We find, as did the AJ, that the material facts are not
in dispute. Specifically, we note that Complainant does not deny that
she did not attend the interview that was scheduled for her because
she relied on the letter she received from H1 wherein he stated that he
would not allow her into the ASP training based on her prior conduct.
Letter from H1 to Complainant, March 29, 2007, Report of Investigation
(ROI) at 169. There is no evidence submitted by Complainant indicating
that her non-selection on April 3, 2007, for the ASP was motivated
by discrimination and there is no evidence showing that the Agency's
legitimate, non-discriminatory reason for not selecting Complainant for
the ASP on April 3, 2007, was a pretext for discrimination.
CONCLUSION
We AFFIRM the Agency's final decision finding no discrimination.
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
February 3, 2011
__________________
Date
2
0120091026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091026