0120122625
09-26-2012
Chriscia Robinson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Chriscia Robinson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120122625
Hearing No. 530-2011-00240X
Agency No. 4B-070-0044-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 6, 2012 final action concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as a Part-Time Flexible (PTF) at the Agency's East Orange, New Jersey Post Office.
On March 8, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against in reprisal for prior EEO activity when:
on November 18 and 19, 2010, her route was assigned to another employee and she was sent home without pay for two (2) days.
Following 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. On March 30, 2012, the AJ issued a decision by summary judgment in favor of the Agency. On April 6, 2012, the Agency fully implemented the AJ's decision in its final action.
In her decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of reprisal discrimination. The AJ further found that assuming arguendo Complainant established disability discrimination, the Agency articulated legitimate, nondiscrimination reasons for its actions which Complainant did not show a pretext.
The Postmaster (PM) stated that as a PTF employee, Complainant has flexible work hours rather than a fixed schedule and has no weekly work hour guarantees. PM further stated that on November 18 and 19, 2010, Complainant was removed from Route 50 to provide a full-time carrier the opportunity to a 40-hour work week. Specifically, PM stated that it is the Agency's procedure "to give a regular 8 hours of work if nothing is available on the regular assignment, at which a PTF can be bumped from [his or her] assignment."
Complainant asserted that she was treated differently from three comparator employees because they were allowed to work 8 hours or more on November 18 and 19, 2012. However, PM stated that all three named employees were scheduled off for November 18 and 19, 2012, however, one employee "was called in on the 19th due to a call out for Sick leave. [Complainant] was called but no answer was received, so [Supervisor Customer Services] went to the next PTF that she was able to contact which was [named employee]."
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant did not make any new contentions on appeal. We find that the AJ properly issued a decision without a hearing, finding no discrimination. We determine that Complainant has failed to identify any genuine issues of material fact that require resolution through a hearing in this matter. The evidence of record fully supports the AJ's determination that Complainant did not prove, by a preponderance of the evidence, that discrimination occurred.
Accordingly, 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 action 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 unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 26, 2012
__________________
Date
2
0120122625
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122625
5
0120122625