0120092102
07-17-2009
Alice J. Matthews, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alice J. Matthews,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092102
Agency No. 1A-066-0005-07
Hearing No. 530-2007-00376X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 24, 2009 final order concerning her equal
employment opportunity (EEO) complaint claiming 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.
On March 12, 2007, complainant, a Mail Processing Clerk at New Jersey
Metro Processing and Distribution Center, Teterboro, New Jersey filed
the instant EEO complaint. Therein, complainant claimed that the agency
discriminated against her on the bases of race black) and age (55) when
on January 17, 2007, she inquired about applying for the position of
Maintenance Operations Support Clerk at the Processing and Distribution
Center (P&DC) and was told she could not apply and subsequently another
employee was awarded the position.
Following an investigation by the agency, complainant was given the choice
of either a final agency decision (FAD) or a hearing before an EEOC Judge
(AJ). Complainant timely requested a hearing. The agency filed a Motion
for a Decision Without a Hearing to which complainant did not respond. On
February 25, 2009, the AJ issued a decision without a hearing finding
no discrimination. The instant agency final order implemented the AJ's
finding of no discrimination.
The AJ noted that in January 2007, a Notice of Intent was posted
indicating that a Maintenance Operations Support Clerk position would
be filled at P&DC from current "incraft" personnel. Complainant was not
"incraft" and therefore could not respond to that notice. No incraft
employee responded to the notice. In February 2007, a white employee was
chosen for the position from the existing inservice register. Complainant
was not on the inservice register.
The Commissions regulations allow an AJ to issue a decision without
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 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, 245 (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, 322-323 (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).
In the absence of direct evidence, complainant has the initial burden
of establishing a prima facie case of discrimination in a claim arising
under Title VII of the Civil rights Act of 1964, as amended, McDonnell
Douglas v. Green, 411 U.S. 792 (1973). To establish a prima facie case of
discrimination in a non-selection decision, complainant must show that (1)
she is a member of a class of protected individuals under Title VII; (2)
she applied and was qualified for the position; (3) she was not selected
for the position despite his qualifications; and (4) the position was
filled by an individual out side of her protected group or that other
circumstances otherwise infer discrimination.
The AJ found that complainant failed to establish a prima facie case
of discrimination on the covered bases. Moreover, the AJ found that
the agency has articulated a non-discriminatory reason for its action
(agency made the subject selection in accordance with its published
rules and regulations regarding such positions; complainant had taken
requisite testing, in the past, for the support position, but there is no
evidence to show that she had done so within two years of the selection,
as required). Finally, the AJ found that complainant failed to show
that the agency's articulated reason for its action was a pretext for
discrimination
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 (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
July 17, 2009
__________________
Date
2
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092102