01A03329
03-21-2002
Dorothy J. Burgess, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Dorothy J. Burgess v. United States Postal Service
01A03329
March 21, 2002
.
Dorothy J. Burgess,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 01A03329
Agency No. 4A070015497
Hearing No. 170-99-8144x
DECISION
Dorothy J. Burgess (complainant) timely initiated an appeal from the
agency's final order concerning her equal employment opportunity (EEO)
complaint of unlawful discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a former EAS-15 Human Resource
Specialist at the agency's Northern New Jersey District facility,
filed a formal EEO complaint on May 19, 1997, alleging that the agency
had discriminated against her on the bases of race (African-American)
and sex (female) when:
(1) on May 5, 1997, her leave request was denied;
(2) on May 5, 1997, she was issued a letter of warning regarding her
failure to attend a safety meeting on May 2, 1997;
on May 21, 1997, she was directed to assume additional job
responsibilities;
on May 21, 1997, the agency issued new instructions for accessing
compensation files;
on June 25, 1997, the agency filled three Human Resource Specialist
details;
the agency did not give her a key to the supply cabinet;
she was not selected as acting Senior Injury Compensation Specialists
on an as-needed basis;
she was subjected to various discriminatory practices in May 1993 and
continuing through April 1997, by her former supervisor.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish that she was
aggrieved by the events described in Issues 4, 5 and 6. Specifically,
the AJ found that the new instructions were to be followed by all unit
members and did not inflict any personal loss or harm on complainant.
The AJ also noted that complainant had no interest in the details herself
and was in no way aggrieved by the selection of other employees to fill
the details. Finally, the AJ noted that complainant was not aggrieved
by the agency's establishment of a new policy for requesting supplies
which was applied to all members of the unit in which she worked.
The AJ therefore dismissed Issues 4-6.
Turning to the remaining issues, the AJ concluded that complainant
failed to establish a prima facie case in regard to Issues 1 and 2.
In so finding, the AJ noted that complainant failed to show that other
employees who failed to request advanced leave as required were granted
leave. The AJ found that the fact that the former supervisor (FS)
allowed employees to use leave with no notice did not establish that
the new supervisor's requirement of advanced notice was discriminatory.
Similarly, the AJ concluded that complainant failed to show that other
employees who failed to appear for a meeting as directed by the supervisor
(S1) were treated more favorably.
The AJ concluded that complainant failed to establish a prima facie
case of sex discrimination in regard to Issue 3 because she failed to
show that similarly situated male employees were treated more favorably.
The AJ also found, however, that complainant established a prima facie
case of race discrimination because she, a Black employee, was given
additional job responsibilities on May 21, 1997, whereas a similarly
situated White employee (CW1) was not. The AJ then concluded that
complainant established a prima facie case of race discrimination in
regard to Issue 7, in that a White employee was appointed to the Acting
Senior Injury Compensation Specialist position.
The AJ concluded, however, that the agency articulated legitimate
nondiscriminatory reasons for its actions which complainant failed to
establish were a pretext for discrimination. In so finding, the AJ noted
that complainant was assigned additional responsibilities on May 21, 1997
because of the extended absence of another employee. The AJ noted that
there is no evidence to establish that this assignment was motivated by
discrimination and found that CW1 was later tasked with this assignment,
in addition to other work. Moreover, the AJ found that complainant was
not selected as the Acting Injury Compensation Specialist at the time
in question because she had been issued a Notice of Proposed Removal<2>
which was still pending, making her an undesirable choice.
The AJ concluded that the agency did not discriminate against complainant
due to her race or sex. The agency's final order implemented the AJ's
decision.
On appeal, complainant restates arguments previously made in her response
to the AJ's Fifteen Day Notice advising the parties of the opportunity
to submit affidavits or memoranda opposing or favoring the issuance of
a Decision Without a Hearing. In addition, complainant argues that the
fact that CW1 was assigned additional responsibilities two months after
complainant is irrelevant and that other employees were granted leave
without advanced notice. In response, the agency argues that there are no
genuine issues of material fact and asks that we affirm its final order.
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
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. In so finding, we note that even assuming complainant was
aggrieved and established a prima facie case of discrimination in regard
to Issues 1- 7, she failed to dispute the agency's explanations for
its actions with specificity. For example, in regard to the letter of
warning, complainant failed to dispute that S1 ordered her to attend the
safety meeting and that she nonetheless did not attend. Her argument that
S1 did not remind her that attendance was mandatory after she explained
to him that FS followed a different procedure, does not raise a genuine
issue of material fact as to the agency's explanation for the letter
of warning. Similarly, complainant failed to dispute that the agency's
new policy on obtaining supplies applied to all employees and that
both Black and White employees were denied keys to the supply cabinet.
Furthermore, complainant failed to dispute the agency's argument that
the extended absence of another employee necessitated the reassignment
of certain duties to complainant. Although complainant argued that this
was discriminatory because CW1 could have been assigned some of these
duties, she failed to rebut the agency's argument that the downsizing
of the facility made it possible for these duties to be completed by
one individual. There is nothing in the record which suggests that
S1's decision to assign these duties to complainant rather than CW1 was
motivated by complainant's race or sex.
We find, therefore, that complainant failed to raise a genuine issue of
material fact as to the agency's explanations for the actions described
in Issues 1 -7. Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 21, 2002
Date
1 The AJ dismissed this issue for untimely
EEO Counselor contact. Complainant did not appeal this dismissal.
2 This notice is not at issue in the subject appeal.