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

Equal Employment Opportunity Commission

Jun 27, 2013

0120113729 (E.E.O.C. Jun. 27, 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
(Pacific Area),
Agency.

Appeal No. 0120113729

Hearing No. 480-2009-00596X

Agency No. 1F-901-0104-09

DECISION

On July 27, 2011, Complainant filed an appeal from the Agency’s June 29, 2011 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 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

Complainant began working for the Agency in 1968. At the time of events giving rise to this
complaint, Complainant worked as a Mail Processing Clerk at the Processing & Distribution
Center (P&DC) in Los Angeles, California. On April 20, 2009, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of race (African-
American) and age (62) when in February 2009, her bid was abolished; she was “excessed;”
and required to bid for a new position. 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. When Complainant did not object, the AJ assigned to the case granted the Agency’s
motion for summary judgment and issued a decision on June 17, 2011.

In his decision, the AJ found it undisputed that due to the drastic decline in mail volume, the
Los Angeles P&DC was forced to “right-size” its work force. In early 2009, the decision was
made to “reposition” Tour 2, assigning most of its employees to Tours 1 and 3.
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Complainant’s unit, the Distribution Review Section, was abolished. Complainant and the
other employees in the Distribution Review Section on Tour 2 learned that their individual bid
positions would thus also be abolished and that consistent with the collective bargaining
agreements, they needed to bid on new positions or become unassigned regulars. The AJ
concluded that there was no evidence presented from which a reasonable fact finder could
conclude that Complainant’s race or age were factors in the Agency’s decision.

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 but
with no brief or statement in support of it.

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. 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 note Complainant’s argument is that a White male and an Asian
female received more favorable treatment than she did and were somehow allowed to remain
working in the unit that had been abolished. Complainant’s point is not well taken. It is
undisputed that both employees were also excessed. The White male, who was one year older
than Complainant, bid and was awarded a position pending proof of his qualifications. The
Asian female bid and was awarded a position that was later canceled. The record suggests that
both employees became unassigned regulars whereas Complainant successfully bid on a full-
time position. We agree with the AJ that the Agency’s actions were not motivated by unlawful
animus but rather responsive to an unprecedented decline in mail volume. For these reasons,
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.
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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
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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 27, 2013
Date