Barbara A. Cherry, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionMay 7, 2009
0120080310 (E.E.O.C. May. 7, 2009)

0120080310

05-07-2009

Barbara A. Cherry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.


Barbara A. Cherry,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Appeal No. 0120080310

Hearing No. 550-2007-00298X

Agency No. 1F-933-0001-07

DECISION

On October 20, 2007, complainant filed an appeal from the agency's

September 19, 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. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order.

BACKGROUND

At the time of the events giving rise to this complaint, complainant

worked as a Sales & Service Associate at the agency's Bakersfield-Oildale

Carrier Annex in Bakersfield, California. On January 20, 2006, the

agency posted a vacancy for a Lead Sales & Service Associate position at

the Bakersfield Downtown Station. The bidding process closed on January

30, 2006. In February 2006, complainant was deemed the high bidder and

awarded the position. Complainant was not immediately placed into the

position because she was "pending qualification status," i.e. it was

anticipated that complainant would have to complete training, or "pass a

scheme," in order to be qualified for the position. Complainant alleged

that soon after she was awarded the bid she was informed by her then

supervisor and the employee responsible for posting bids that management

was planning on abolishing the position.

On August 25, 2006, pursuant to a Step 2 settlement on an unrelated

grievance, complainant was assigned to work in the Passport Office of

the Bakersfield-Oildale Carrier Annex as a full-time Passport Clerk.

On August 28, 2006, complainant relinquished the Lead Sales & Service

Associate position after accepting the grievance settlement. On September

13, 2006, the Lead Sales & Service Associate position was awarded to

the next highest bidder (Caucasian), effective September 16, 2006.

On January 24, 2007, complainant filed an EEO complaint alleging that

she was discriminated against on the basis of race (African-American)

when, on September 13, 2006, she was not awarded the T-6 Lead Sales

Associate position at the Downtown Bakersfield Station.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and a 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 July 16, 2007 motion for a decision

without a hearing and issued a decision without a hearing on September

14, 2007. The AJ's decision found that complainant failed to establish

that the agency's legitimate, nondiscriminatory reasons for its actions

were a pretext for unlawful race discrimination. The agency subsequently

issued a final order adopting the AJ's finding that complainant failed

to prove that she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant argues that the agency erred in finding no

discrimination and reiterates arguments made below. In response, the

agency urges the Commission to affirm the agency's final decision.

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").

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).

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

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).

Assuming arguendo that complainant established a prima facie case

of discrimination, we find that the agency articulated legitimate,

nondiscriminatory reasons for its actions. The Downtown Station

Manager submitted an affidavit into the record stating that she did not

immediately place complainant into the position because she was under

the impression that complainant was training to pass a scheme to be

qualified for the position. The Manager, Customer Services submitted an

affidavit noting that selectees for the Lead Sales & Service Associate

position were previously required to pass a test, or scheme, to qualify

for the position, and "it was not until later that it was determined

that the regulations had changed and no qualifying was necessary."

After management officials had learned that no further training was

necessary for the Lead Sales & Service Associate position, complainant

was still not placed into the position because complainant relinquished

her bid position and accepted a settlement on an unrelated grievance

placing her into a Passport Clerk position.

Complainant now bears the burden of proving by a preponderance of

the evidence that the agency's articulated reasons were a pretext for

discrimination. Complainant can do this directly by showing that the

agency's proferred explanation is unworthy of credence. Burdine, 450

U.S. at 256. Upon review, we concur with the AJ's determination that

complainant failed to provide any evidence of pretext in the record.

Moreover, we find that the record is devoid of any evidence that

the agency's actions were motivated by discriminatory animus towards

complainant's race.

CONCLUSION

The Commission finds that summary judgment was appropriate in this

case because no genuine issue of material fact exists. We note that

complainant failed to present evidence that any of the agency's actions

were motivated by discriminatory animus towards her. We discern no

basis to disturb the AJ's decision.

Accordingly, after a careful review of the record, including arguments

and evidence not specifically addressed in the decision, the agency's

final order is AFFIRMED.

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

May 7, 2009

Date

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0120080310

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120080310