0120082628
11-10-2008
Vicki L. Ledford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vicki L. Ledford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082628
Hearing No. 560-2007-00400X
Agency No. 4G-730-0053-07
DECISION
Complainant filed a timely appeal from the agency's final order,
dated April 23, 2008, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
During the relevant time, complainant was a Rural Carrier assigned to
the agency's Warr Acres, Oklahoma Carrier Branch. Believing that she was
subjected to discrimination when her route was adjusted, complainant
contacted the EEO office. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a formal
complaint based on sex and reprisal. According to complainant, operation
support adjusted her route without considering her input. She was told
that "because of overburdened routes K47 and K48 were being adjusted
to K43." As a result, complainant experienced a $7,000.00 reduction
in pay. Months later, in April 2007, complainant explained that she
learned that a male employee had a K47 route that was never adjusted
back to a K43. A male doing the same job, contended complainant, was
allowed to keep his K47 pay. Further, complainant asserted, if the
male employee has special circumstances, then her special circumstances
(i.e. an EEO settlement agreement) should have been considered as well.
The agency accepted the complaint for investigation and framed the claims
as follows:
(1) Effective November 25, 2006, complainant's route was adjusted; and,
(2) On April 18, 2007, complainant became aware that another carrier's
route was never adjusted back to a K43 route.
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 timely
requested a hearing. Over the complainant's objections, the AJ assigned
to the case granted the agency's February 26, 2008 motion for a decision
without a hearing. On April 14, 2008, she issued a decision finding
no discrimination.
Based upon the Report of Investigation, the AJ noted that in 2004
complainant engaged in EEO activity, which resulted in a settlement
agreement. The July 9, 2004 agreement, observed the AJ, required the
agency to seek complainant's input for future adjustments to her route.
As noted above, complainant's route was adjusted in November 2006,
while a male employee's route was not adjusted and remained K47.
Complainant believed this was discriminatory.
The AJ concluded that complainant failed to establish a prima facie case.
With respect to the basis of sex, the AJ found that complainant did
not show that she was treated differently that persons outside of her
protected class. The male employee identified by complainant was not
similarly situated, stated the AJ, as he was assigned to a different
station and his route was adjusted by a different manager under different
circumstances.
Regarding the basis of reprisal, the AJ determined that although the
management officials knew of her prior EEO activity, she failed to
establish a nexus between the prior activity and the route adjustment.
In particular, the AJ noted that over two years had passed between
complainant's earlier EEO activity and the adverse action at issue.
Even assuming arguendo that complainant had presented a prima facie case,
the AJ found that the agency presented a legitimate, non-discriminatory
reason for its actions. Complainant's manager explained that he adjusted
complainant's route in response to instructions from the Southwest Area
Office that all overburdened routes were to be adjusted. Moreover, he
stated that he discussed with complainant the various options available
as to the territory to adjust. The adjustment to complainant's route,
asserted the agency, was made in accordance with agency policy and the
union contract. The Route Count and Inspection Team Leader, responsible
for identifying the routes to be adjusted, told complainant's manager that
more territory would need to be removed from complainant's route to meet
the minimum of 43K. Further, she explained that the route belonging
to the male comparator could not be adjusted because it was located
in the Southeast Station and was the only rural route in the station.
That station had no auxiliary routes, and to create one there needs to
be at least twelve hours of work. If twelve hours were removed from
the comparator's route he would fall under the 43K minimum.
Finally, the AJ concluded that complainant failed to show that the
agency's reason was pretext for discrimination.
On April 23, 2008, the agency issued a final order adopting the AJ's
finding that complainant failed to prove that she was subjected to
discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the 2004 settlement agreement "has
everything to do with the 2006 adjustment . . . ." Management was
required to "get my input" for the next adjustment, contends complainant,
and the Route Count and Inspection Team Leader "rejected" her input.
Complainant believes that the action is both retaliatory and a breach
of the agreement.
Additionally, complainant argues she was subjected to sex discrimination
because a male employee was treated differently. His route was not
adjusted as complainant's was.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be
reviewed de novo"). This essentially means that we should look at this
case with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
In the instant case, we find that the AJ appropriately granted the
agency's motion for summary judgment. Further, the Commission agrees
that complainant has failed to show she was subjected to unlawful
discrimination.
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).
As noted above, the agency has provided legitimate, non-discriminatory
reasons for adjusting complainant's route. The Route Count and Inspection
Team Leader, as well as complainant's manager, explained in detail that
pursuant to agency regulations and the union contract her route needed
to be adjusted to 43K. The record contains the agency policies and
contacts supporting her assertions. The Team Leader also attested that
the comparator's route could not be adjusted, in accordance with the union
contract, without resulting in a route below the 43K minimum. Complainant
has not shown that the agency's proffered reasons are pretext.
Finally, to the extent that complainant believes the agency's actions
violate a 2004 settlement1, we disagree that the instant matter implicates
the agreement. Even assuming that the agreement language should be
considered, the Commission finds the alleged actions do not constitute
a breach. The agreement simply provides that, for future adjustments,
the relevant agency officials "will ask [complainant] for her input as
to what she wants adjusted." The testimony in the record reveals that
complainant's manager discussed various options with complainant and did
consider her input. The information was relayed to the Team Leader, which
rejected the suggestions for legitimate reasons. The settlement language
did not require the agency to accept or follow complainant's input.
CONCLUSION
Accordingly, based on a thorough review of the record, the agency's
finding of no discrimination is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
November 10, 2008
Date
1 The agency official who signed the agreement is the Team Leader's
spouse.
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2
0120082628
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120082628