Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Feb 21, 2013

0120114231 (E.E.O.C. Feb. 21, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120114231

Hearing No. 430-2011-00097X

Agency No. 1K-231-0058-10

DECISION

On September 12, 2011, Complainant filed an appeal from the Agency’s 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. The Commission deems the appeal timely and accepts it for de novo
review 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 Maintenance
Support Clerk at the Agency’s Processing & Distribution Center (P&DC) in Charlottesville,
Virginia. In February 2010, the Agency decided to close down the Charlottesville P&DC and
consolidate most of its functions with the Richmond P&DC. The Charlottesville Main Post
Office (MPO) was to remain operational. Approximately 125 employees were impacted by the
P&DC’s closing, including Complainant.

Consistent with the APWU agreement, the procedures for closing a postal installation and for
excessing impacted employees were followed. Around April 16, 2010, Complainant received
a bidding package that was due to be completed by April 23, 2010. Complainant submitted her
bid package. Her first choice was a labor custodian position in Lynchburg, Virginia. The
awarded bids were posted on April 26, 2010. Complainant received her first choice and was
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instructed to report to work in May 2010. Claiming it was an undue hardship on her family,
Complainant ultimately resigned in lieu of reporting to Lynchburg.

On August 25, 2010, Complainant filed (and amended) an EEO complaint alleging that the
Agency discriminated against her on the bases of sex (female) and age (49) when she was
excessed to Lynchburg and forced to resign. At the conclusion of the investigation, the
Agency provided Complainant with a copy of the report of investigation and notice of her right
to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the
Agency’s June 7, 2011, motion for summary judgment and issued a decision on August 22,
2011.

In her decision, the AJ found it undisputed that the excessing procedures used were completely
consistent with the union agreement and were based on seniority.1

The AJ further found no
evidence to support a prima facie case of sex or age discrimination, noting that Complainant
was one out of over 100 employees impacted by the closing of the Charlottesville P&DC. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged. This appeal followed.
ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment 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). 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.

Upon review of the record, we agree with the AJ that no material facts are in genuine dispute.
The gist of Complainant’s claim is that she tried to take a voluntary downgrade from her
Maintenance Support Clerk position to a Labor Custodian position and thus had sufficient
seniority to be sent to the Charlottesville MPO. However, the personnel action that affected
this downgrade occurred after April 23, 2010, and was therefore invalid. Thus, Complainant
remained a Maintenance Support Clerk who did not have sufficient seniority to be assigned to
the maintenance craft at the Charlottesville MPO. She was offered four positions consistent
with the union agreement and was awarded the one she selected as a first choice. There is not
an iota of evidence that Complainant was forced to resign. She did so voluntarily.

1 It is noted that Union Stewards were entitled to “super seniority” rights and could out bid any
individuals in their craft, regardless of job title.
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No reasonable fact finder could conclude from this record that unlawful animus towards
Complainant’s sex or age motivated the Agency’s actions. In conclusion, we discern no basis
to disturb the AJ’s decision, and we AFFIRM the Agency’s final order.

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
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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

February 21, 2013
Date