0120160029
10-11-2016
Elsa R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elsa R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120160029
Hearing No. 520-2015-00424X
Agency No. 1B-012-0019-14
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 12, 2015 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a General Clerk at the Agency's Network Distribution Center in Springfield, Massachusetts.
On October 27, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of race (Puerto Rican), sex (female), color (unspecified), disability, and age (over 40) when:
since approximately July 7, 2014 and ongoing, she has been denied the opportunity to work overtime on holidays and her non-scheduled days.
After an investigation of the claim, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a Hearing (Notice of Intent) on June 24, 2015. The Agency responded to the Notice of Intent on July 10, 2015, but Complainant did not respond. On July 29, 2015, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant alleged that she was not paid overtime on the following dates: July 7 and 14, 2014; August 11, 17, 18, 24, 25, and 31, 2014; September 1, 14, and 15, 2014; October 19 and 20, 2014; and January 18, 2015.
The Manger, Distribution Operations (Manager) stated that overtime is given on a needed basis, and that there was no need for overtime on the dates cited by Complainant. Further, the Manager stated that Complainant's race, sex, color, disability, and prior protected activity were not factors in Agency management's decision denying her overtime.
The Acting Manager, Distribution Operations (Acting Manager) confirmed that there was no need for overtime on the dates cited by Complainant. Moreover, the Acting Manager stated that she did not discriminate against Complainant based on her race, sex, color, disability, and prior protected activity.
Complainant asserted that several comparators were treated more favorably than she was treated, when they were granted overtime, the AJ found Complainant offered no evidence in support of her assertions. For instance, the AJ noted that the Manager stated while that a named comparator's regular scheduled dates included July 2 and 4, 2014, the Manager had to do a pay adjustment for July 9 and 16, 2014, and August 13, 2014 because these were the comparator's Change of Schedule (COS) dates, and September 1, 2014 was a holiday and the comparator worked on September 17 and 24, 2014.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
Complainant, on appeal, argues that the AJ's decision finding no discrimination was improper because her representative did not receive a copy of the Notice of Intent. Complainant further argues that she was not granted overtime on her non-schedule days and holidays, and that she was treated less favorably that the other clerks because they received non-scheduled and holiday overtime.
In response, the Agency argues that Complainant did not designate a representative any time after requesting a hearing. Specifically, the Agency states that Complainant did not have a "properly designated" representative during the time her formal complaint was before the AJ.
Further, the Agency notes that Complainant claimed she was on extended vacation and did not timely receive the Notice of Intent. The Agency states that a review of Complainant's time and attendance records indicate she was on leave from June 12, 2015 to July 14, 2015. The Agency stated that Complainant returned from her vacation on July 15, 2015, and was in possession of the Notice of Intent by at least July 15, 2015. The Agency stated that Complainant was afforded an opportunity to contact the AJ to explain that she had just received the Notice of Intent because she had been on vacation and ask for an extension to respond, but failed to do so.
ANALYSIS AND FINDINGS
As a threshold matter, we find that the AJ properly issued a decision without a summary judgment. Specifically, we note that a review of the record reflects that Complainant was afforded an opportunity to contact the AJ to explain that she had just received the Notice of Intent because she had been on vacation and ask for an extension but failed to do so. We also note that Complainant never placed the AJ on notice that she had a representative.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
The AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. We have carefully reviewed the record, as well as the arguments presented on appeal as noted above. However, we conclude that Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.2
The Agency's final action implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 11, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
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