Bebee R. Powers, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 5, 2009
0120071028 (E.E.O.C. Jun. 5, 2009)

0120071028

06-05-2009

Bebee R. Powers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Bebee R. Powers,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120071028

Hearing No. 410200600220X

Agency No. 4H300005806

DECISION

On September 26, 2006, complainant filed an appeal from the agency's

September 25, 2006 final order concerning her equal employment opportunity

(EEO) complaint alleging employment discrimination in violation of the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 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

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

worked as a probationary Rural Carrier Associate at the agency's

Douglasville Post Office, Campbellton Street Station, in Douglasville,

Georgia. Effective January 17, 2006, complainant was removed for

unsatisfactory performance/failure to meet the requirements of her

position. The agency's stated reason for removing complainant was

that complainant used too much time on her route and failed to notify

management when she was running late, contrary to the instructions given

to her. The agency also added that complainant was argumentative.

Complainant timely initiated EEO counseling, and on February 22, 2006,

filed an EEO complaint alleging that she was discriminated against

on the basis of age (52) when she was terminated on January 17, 2006.

Complainant also alleged that in February 2005, during the pre-employment

screening, she was asked if she would have trouble remembering her job and

she was told that the position for which she was applying was a mentally

challenging job. The agency accepted the issue regarding the removal and

the claim regarding the pre-employment question and comment was dismissed

for failure to state a claim and untimely EEO contact. There is no

evidence of record that complainant ever challenged this dismissal and,

consequently, we will not address this claim further herein.

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 requested a

hearing. On August 10, 2006, the agency submitted a motion for a decision

without a hearing. Without awaiting a response from complainant, the AJ

assigned to the case granted the agency's motion and issued a decision

without a hearing on August 16, 2006. The AJ's decision consists of a

cursory order which referenced the agency's motion. The AJ decision does

not contain an independent assessment of the case. 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 her EEO complaint has been mishandled

and that she was disadvantaged because her representative had not been

notified of the agency's motion. Complainant protests that the agency's

expectations and requirements were unreasonable.

The agency did not submit a brief in response to the appeal.

ANALYSIS AND FINDINGS

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 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 note that the AJ in this case did not wait the full allotted time for

a response from complainant prior to granting the agency's motion for

summary judgment; further, the AJ incorporated the agency's motion into

her decision. To the extent that the AJ erred in this regard, however,

our review of the record leads us to conclude that such error was

harmless, because no genuine issue of material fact exists in this case.

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). She

must generally 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). The prima facie inquiry may be

dispensed with in this case, however, because the agency has articulated

legitimate, 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, 143 (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).

Our review of the record reveals that the agency proffered a legitimate,

nondiscriminatory reason for removing complainant; namely, that

complainant did not meet the expectations of the position for which

she was hired. Complainant concedes that she did not work within the

assigned time allocations. She does not refute the agency's explanation

for terminating her employment. Instead, she argues that the agency's

expectations were unreasonable. Complainant's bare assertions, without

more, are insufficient to create a genuine issue of material fact,

much less to establish pretext. Accordingly, we find that she has

not established her claim of discrimination. The final agency order

therefore is AFFIRMED.

CONCLUSION

Therefore, based on a thorough review of the record including

complainant's arguments on appeal, the Commission AFFIRMS the agency's

final order.

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 tends 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

June 5, 2009

Date

2

0120071028

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013