0120090175
06-03-2010
Carol L. Robinson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Carol L. Robinson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120090175
Hearing No. 443-2007-00092X
Agency No. 4E-570-0023-06
DECISION
Complainant filed an appeal from the agency's October 7, 2008 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. 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 Clerk at the agency's Sioux Falls Post Office facility in Sioux Falls,
South Dakota. Complainant had previously worked for the agency at the
time she was reinstated to a full-time Clerk position in August 1993.
On July 18, 1998, complainant voluntarily accepted reassignment to the
position of Part-Time Regular (PTR) Clerk.
On December 28, 2006, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of sex (female), age (55),
and reprisal for prior protected EEO activity when:
1. On or about September 20, 2006, complainant became aware that
her seniority placement and number was lower than previously designated;
2. On an unspecified date, complainant's work schedule was adjusted;
and
3. On September 30, 2006, complainant's Part-Time Regular Clerk
position was abolished.
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. Over the complainant's objections, the AJ assigned to the
case granted the agency's February 1, 2008 motion for a decision without a
hearing and issued a decision without a hearing on September 30, 2008.
In his decision, the AJ found that none of the material facts were in
dispute and that judgment should be entered as a matter of law. With
respect to claim (1), the AJ found that complainant's date of seniority,
used by employees and the agency for the job bidding process and vacation
selection, had been altered to conform with the agency's union agreement
and to conform to the resolution of grievances that impacted the manner
in which seniority dates are determined. Specifically, the AJ found that
complainant's seniority date had been adjusted from August 21, 1993 to
July 18, 1998 based on contract language in effect in 1998 that provided
that when an employee changes from full-time to part-time status, the
employee's seniority begins anew. The AJ observed that an error occurred
on June 29, 2005, when a published list of employees and corresponding
seniority dates restored complainant's seniority date to her original
1993 reinstatement date. On August 16, 2005, complainant's seniority
date was changed back to July 18, 1998 consistent with a grievance
settlement achieved between the agency and the local Association of
Postal Workers Union (APWU or Union) steward that reflected the Union's
decision not to seek restoration of seniority dates for employees that
sought reassignment from full-time to part-time regular clerk status
during period covered by the Union's 1994 - 1998 National Agreement.
The AJ found that the effect of the agency's error with respect to
the seniority list of June 29, 2005 what to give complainant greater
seniority than she would have had under the contract then in effect,
absent the error. The AJ found that complainant did not allege that
she suffered any adverse actions as a result of the agency's error in
her seniority date between June 29, 2005, when the error first appeared,
and September 28, 2005, when the seniority list was corrected.
Because the error worked to provide complainant with greater seniority,
rather than less, the AJ found that complainant was not injured by the
agency's actions described in claim (1). The AJ therefore found the
evidence did not show that complainant was discriminated against on any
basis as alleged in claim (1).
Regarding claim (2), the AJ found that complainant's work schedule
was adjusted as a result of her position being abolished (claim (3)).
Specifically, the AJ observed that a function 4 review1 prompted the
agency to realign staffing needs, including clerk hours, with available
the work load. The AJ found that seniority was not a factor in
determining which jobs were abolished, but did determine the successful
bid after new part-time clerk positions were posted for bidding. The AJ
noted that complainant's schedule changed from 33 hours per week with
afternoon hours, to 32 hours per week that included weekday afternoons
and Saturday morning. The AJ found that complainant's position and
schedule was not the only position abolished and complainant was not
the only employee whose schedule was impacted by the realignment of the
clerk hours. On the contrary, of the six clerk positions, four of the
six female clerks had their positions abolished.
Significantly, two clerks, (E1 and E2) the AJ noted, who were younger than
complainant, were also impacted. E1, who had not previously participated
in the EEO process, fared worse than complainant. E1's schedule changed,
her total hours were reduced further than complainant's hours were,
and E1 was reassigned to a different location. E2's hours were also
significantly reduced and E2's pay location was changed.
The AJ concluded that viewing the evidence in the light most favorable
to complainant, complainant had not presented evidence sufficient that a
reasonable fact finder could find that complainant had been subjected to
sex or age discrimination or reprisal. 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.
On appeal, complainant argues, among other matters, that the AJ failed
to rule upon complainant's motion to compel discovery responses and
failed to address, in his decision, incidents of on-going discrimination
described in complainant's complaint.
On appeal, the agency argues, among other matters, that it was the
union's decision not to seek restoration of the seniority dates for
clerks who changed from full-time to part-time status, which, in part,
caused complainant's seniority date to be changed back to July 1998
after the error made by the Manager of Human Resources was discovered.
The agency further argues, as it did in its Motion for Summary Judgment,
that complainant's claim (1) is untimely.
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.
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).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she 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
administrative judge 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 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 he or
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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we find the AJ properly issued his decision without
a hearing. We find the material facts that pertain to the accepted
claims are not in dispute. We note that on appeal, complainant states
that the agency and the AJ have failed to address other incidents of
harassment that occurred prior to the time of the incidents described
in her instant complaint. Complainant points out that she denoted the
harassment as "on going" and that it extends back for years, as early as
when complainant first sought reinstatement in 1993. We consider in our
decision, the claims accepted for investigation, and note the earlier
incidents as background evidence only in complainant's overall claim
of harassment. Significantly, we find that the AJ properly afforded
the parties an opportunity to engage in discovery, which they did, and
the AJ made the appropriate rulings where necessary. From the record,
we find evidence that complainant has previously litigated the merits2 of
incidents that occurred prior to the incidents in the instant complaint,
and we decline to address those incidents that were not the subject of
the instant complaint.
We find no dispute among the parties that complainant's seniority date,
appeared on a seniority list issued in June 2005, as August 21, 1993.
Construing the evidence in the light most favorable to complainant, we
assume for the sake of argument, that the agency officials responsible
for changing complainant's seniority date, and that of at least one
other employee, were aware of complainant's prior protected EEO activity.
We find the evidence does not show that complainant was adversely impacted
by the change of her seniority date to a date that provided her with
greater seniority rights, not less, nor that the change in her seniority
date was the kind of agency action likely to deter complainant or other
employees from engaging in the EEO process. We find no dispute that
another clerk, E2, was also impacted by the same error, and that E2 is
both female and younger than complainant.
We therefore find that with respect to claim (1), complainant has not
established a prima facie case of discrimination on the bases of sex,
age or reprisal. We find the AJ properly found that complainant did
not show that discrimination occurred as alleged in claim (1).
We consider, with claims (2) and (3), that complainant's position, and
that of several other part-time regular clerks, was impacted and that
some positions were abolished as a result of an audit that resulted in
an adjustment of the number of clerks at complainant's duty station,
as well as in the schedules of those clerk position created after the
realignment. We find, as did the AJ, that the impacted clerks were all
female and that at least two of the clerks were younger than complainant.
Again, we assume for the sake of argument, that the agency officials,
specifically, the Post Master of Sioux Falls Post Office, was aware of
complainant's prior EEO activity. We find that complainant has not shown
that she was treated less favorably as a result of the agency's audit,
with respect to her schedule and number of hours because of her sex or
age or prior EEO activity. Rather, the evidence shows that other female
and younger employees were subjected to the same realignment actions
that resulted in even less desirable schedule changes for them. In at
least one instance, a younger, female clerk with no prior EEO activity,
had her position abolished and ended up assigned to a different location
entirely after the bidding process was conducted according to the agency's
negotiated agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision, finding no discrimination.
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
June 3, 2010
__________________
Date
1From the record, a 'function 4' review or function four audit appears
to be a staffing scheduling review to realign the retail positions with
current operational needs.
2 Robinson v. USPS, EEOC Request No. 05A30131 (February 4, 2003)
(complainant alleged discrimination on the bases of disability and
reprisal when she was not reinstated in June 1993 and also alleged
discrimination when she was not selected for positions in 1997).
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0120090175
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090175