0120081484
09-16-2009
Barbara A. Dunbar, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara A. Dunbar,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081484
Hearing No. 440-2007-00205X
Agency No. 6X-000-0059-06
DECISION
Complainant filed an appeal with this Commission from the January 2,
2008 agency decision which implemented the December 27, 2007 decision
of the EEOC Administrative Judge (AJ) who found no discrimination.
Complainant alleges that she was discriminated against on the bases
of race (African-American), national origin (descendant of other than
European), sex (female), and color (black) when: (1) on
March 22, 2006, she was made aware that she was not selected for the
position of personnel Processing Specialist, EAS-16, V/A 11906; (2) on
March 28, 2006, she was made aware she was not selected for the position
of Personnel Processing Specialist, EAS-16, V/A 11907; and (3) August 3,
2006, she was notified by electronic mail that on July 27, 2006, she
was not selected for the position of Personnel Processing Specialist,
V/A 12401.
After investigation of the complainant, complainant requested a hearing
before an AJ. The agency submitted a motion for a decision without a
hearing (summary judgment). The AJ granted the agency's motion over
the objection of complainant and issued a decision.
In her decision addressing only claim (3), the AJ concluded that, assuming
arguendo complainant had satisfied all of the elements of a prima facie
case, the agency had articulated a legitimate, nondiscriminatory reason
for not selecting complainant.1 Specifically, the AJ determined that
complainant did not meet the requirements of the position because her
work experience was in payroll and not in personnel. The AJ also noted
that the agency's Review Committee recommended for hire 36 candidates
and that one-third of those recommended were African-American females.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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).
Further, an AJ should not rule in favor of one party without holding a
hearing unless the AJ 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 AJ 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, 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
generally establish a prima facie case by demonstrating that complainant
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 where 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).
Upon review, the Commission finds that the grant of summary judgment
was appropriate. Complainant has failed to proffer sufficient evidence
to establish that a genuine issue of material fact exists such that
a hearing on the merits was warranted. Specifically, the Commission
finds that the investigative record was adequately developed; there were
no genuine issues of material fact; and there were no findings of fact
made by weighing conflicting evidence or assessing witness credibility.
In addition, we find no impropriety or bias regarding the conduct of
the AJ during the pendency of the hearing request.
The agency has articulated a legitimate, nondiscriminatory reason for
not selecting complainant. Construing the evidence in a light most
favorable to complainant, she has failed to show that the agency's
action was motivated by discriminatory animus. Even if there were others
recommended for hire who did not have personnel processing experience or
were not agency employees, complainant has not shown by a preponderance
of the evidence that the agency did so for prohibited reasons. It is
not sufficient to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination. St. Mary's
Honor Center, supra. At all times, the ultimate burden of persuasion
remains with complainant to demonstrate by a preponderance of the
evidence that the agency's reasons were pretextual or motivated by
intentional discrimination. Complainant failed to carry this burden.
Accordingly, the agency's decision finding no discrimination 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
September 16, 2009
__________________
Date
1 The agency previously dismissed claims (1) and (2) for complainant's
failure to contact an EEO Counselor within the 45-day time limitation
period required by 29 C.F.R. � 1614.105(a)(1). Since complainant does
not challenge the agency's dismissal on appeal, and we see no error in
the agency's dismissal we need not alter the agency's finding.
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0120081484
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013