0120073533
02-05-2009
Zella D. Shephard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Zella D. Shephard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073533
Agency No. 1C251001605
Hearing No. 530200600049x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 3, 2007, 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against her on the
bases of sex (female) and age (over 40) when, during her probationary
period, she was given an unjustifiably low evaluation on June 14, 2005,
and separated effective July 8, 2005. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On June 27, 2007, the AJ issued a decision without a hearing,
finding that the agency did not discriminate against complainant.
Complainant was hired as a part-time mail handler and was assigned to
work the flat sorter (FSM) and other machines at the Clarksburg, WV,
postal facility; she had previously served several years as a Rural
Carrier Associate. The agency stated that complainant's performance
was unsatisfactory in several respects, e.g., mislabeling tubs of mail,
failing to learn schemes, erring on the FSM, and unable to keep machines
loaded; and she was terminated based on performance. Although complainant
contended that she had insufficient training and poor supervision and that
younger males were not removed for similar infractions, the AJ concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, and complainant did not demonstrate pretext, in that, the
agency asserted that all probationary employees were treated the same
and measured against objective standards, and it identified employees
of other classes that were retained and terminated.
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56. 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). The AJ may properly issue a decision
without 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. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
issuance of a decision without a hearing was appropriate, and the
preponderance of the evidence of record does not establish that
discrimination occurred.
CONCLUSION
Accordingly, the agency's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
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
__02/05/2009________________
Date
2
0120073533
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
4
0120073533