0120083874
01-15-2009
Therese M. Churchill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Therese M. Churchill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083874
Hearing No. 520-2008-00381X
Agency No. 4A-117-0024-08
DECISION
Complainant filed an appeal from the agency's August 14, 2008 final order
concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Mail Processing Clerk at the agency's North Massapequa Post Office
facility in Massapequa, New York. On February 15, 2008, complainant
filed an EEO complaint alleging that she was discriminated against on
the bases of age (48) and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:
On January 14, 2008, complainant's duty hours were changed.
At the conclusion of the investigation, complainant was provided 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. Over the complainant's objections, the AJ assigned to the
case granted the agency's July 29, 2008 motion for a decision without
a hearing and issued a decision without a hearing on August 7, 2008.
In his decision, the AJ found that complainant did not present a prima
facie case of age discrimination in that complainant failed to identify
any similarly situated employees, not in her protected age group,
who were treated more favorably than she was treated. Specifically,
the AJ noted that an employee complainant identified as receiving
preferential treatment was not in the same position complainant
occupied. Complainant was a Mail Processing Clerk, while E1 works as
a Sales/Distribution Associate. The AJ observed that complainant's
starting time was changed from 6:00 am to 8:30 am, while E1 continued
to start at 6:30 am. Complainant argued that she had seniority over E1
and that E1's hours should have been changed before complainant's hours
were adjusted to accommodate the needs of the service cited by the agency.
The AJ found that because the two employees held different positions, they
were not similarly situated. Further, the AJ noted that complainant's
supervisor stated the reason complainant's starting time was changed,
rather than E1's starting time, was because complainant was able to do
work at another postal facility that E1 was unable to fulfill.
With respect to reprisal, the AJ found that complainant established a
prima facie of reprisal discrimination. Specifically, complainant's
supervisor, S1, was aware of complainant's prior EEO activity that
occurred some two and a half months prior to complainant's schedule
change. That short time frame was sufficient to create an inference
of discrimination. However, the AJ found that complainant did not show
that the agency's operational reasons for changing complainant's starting
time, namely that complainant was needed for work that occurred later
in the day, and to work a wide variety of jobs at the main post office
facility when needed, were a pretext to mask discrimination.
The AJ concluded that no material facts remained in dispute and
that drawing all conceivable inferences in complainant's favor, that
complainant did not show that age motivated the agency's decision to
change her starting time as alleged. The agency subsequently issued a
final order on August 14, 2008, adopting the AJ's finding that complainant
failed to prove that she was subjected to age or reprisal discrimination
as alleged.
On appeal, as she did in her opposition to the agency's motion for a
decision without a hearing, complainant points out various inconsistencies
in the statements of agency officials, including S1, and notes that she
has seniority over E1. Complainant notes that she works so infrequently
at the main office that S2, another supervisor, withdrew the cash
from her stamp drawer, stating that complainant doesn't use it much.
Complainant argues that the agency's "needs of service" arguments are
not consistent with the evidence she has presented and that she should
have an opportunity to cross examine the agency's witnesses.
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. Department of Defense, 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).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we find no reason to disturb the AJ's decision
rendered without a hearing. Specifically, we find, as did the AJ,
that complainant and E1 were not similarly situated. Complainant does
not dispute that she held a different position than did E1, nor does
complainant dispute that E1 was not able to work at the same locations
as she was. We find that complainant did not show that S1's decision
to change her start time was likely motivated by complainant's age.
With respect to reprisal, we find the relevant facts are also not in
dispute here either. Rather, neither party denies that S1 was aware
of complainant's prior EEO activity. The AJ observed that complainant
presented no evidence to refute the agency's assertion that she was the
only clerk whose bid assignment allowed her to work the variety of jobs
at both locations that the agency deemed necessary. We note that while
the agency has not provided complainant with the training needed to
perform the jobs envisioned by S1 in connection with the adjustment of
her starting time, we find that complainant has not shown that another
employee, without prior EEO activity, could have been similarly trained
and assigned. We concur with the AJ that complainant did not show that
the agency's reasons were unworthy of belief.
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 15, 2009
__________________
Date
2
0120083874
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083874