01a60830
04-07-2006
Gloria Logans-Austin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gloria Logans-Austin v. United States Postal Service
01A60830
April 7, 2006
.
Gloria Logans-Austin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60830
Agency No. 1G-756-0051-03
Hearing No. 310-2005-00323X
DECISION
Complainant initiated an appeal from the agency's final order, dated
October 13, 2005, concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination. For the following
reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Mail Flow Controller (Acting)
at the agency's Bulk Mail Center, Dallas, Texas facility, filed a formal
EEO complaint on October 27, 2003, alleging that the agency discriminated
against her on the bases of race (Black), sex (female), color (black),
age (50), and reprisal for prior EEO activity when:
On July 24, 2003, complainant received notification that she was not
selected for the position of Mail Flow Controller, EAS-14, Dallas Bulk
Mail Center.
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, dated September 28, 2005, without
a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of sex, age, race or color discrimination because complainant failed
to identify any employees, not in her protected classes, who received
preferential treatment, when complainant was not awarded the position of
Mail Flow Controller, EAS-14 for which she had applied. The AJ assumed,
for the sake of argument, that complainant established a prima facie
case of reprisal discrimination inasmuch as complainant had previously
participated in the EEO process. Nevertheless, the AJ found that the
agency articulated a legitimate, non-discriminatory explanation for
its failure to select complainant for the position in 2003, based on
complainant's ineligibility for the position. Specifically, the AJ
noted that the agency relied on its policy that an employee detailed
to a higher level position for more than 120 days was ineligible to be
selected for the position. The AJ found no dispute between the parties
that complainant had been acting in the position of Mail Flow Controller,
EAS-14 for more than 120 days and that she was initially selected for
the position in 2001. The undisputed evidence further showed that,
subsequent to complainant being notified that she was selected, the
agency's Human Resources official informed the selecting official that
complainant was ineligible to be placed in the position due to complainant
having been detailed to the position for more than 120 days. Thereafter,
the AJ noted, the vacancy announcement was re-posted and ultimately filled
in 2003, by a non-competitive appointment when an employee requested a
transfer from another location.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that another employee was similarly found ineligible for selection to
a different position and that an agency official had requested that
the provisions of ELM 353.344<1> be waived for both employees to allow
them to be placed into the positions for which they applied based on the
agency's needs. The evidence showed that the Human Resources official
responded to the request by saying that no provision existed to excuse the
eligibility requirements even under special circumstances. Accordingly,
the AJ found that a decision without a hearing was appropriate, as no
material facts remained in dispute, and that drawing all reasonable
inferences in complainant's favor, that no discrimination occurred.
The agency's final order implemented the AJ's decision.
On appeal, complainant argues that the temporary position which
she held at the time she applied for Vacancy Announcement 01-04 and
later, Vacancy Announcement No. HQ-1772, are not the same positions.
She states that the positions are on different tours, have different
days off, and therefore she was not acting in the same position (and
thus not ineligible) for which she later applied, and which position was
ultimately filled in July 2003. Complainant submits additional evidence
(witness statements) in support of her contentions that the agency filled
the position of Mail Flow Controller, EAS-14 on a different tour with
different non-scheduled days.
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. We find that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Specifically, we note that
complainant has not shown any connection between her non-selection and
her protected classes. We note, as did the AJ, that the selectee was
also a Black female, over 40 years of age, and not substantially younger
than complainant at the time of the selection. More importantly, we find
nothing in the record suggesting that discrimination played any role in
the agency's decision to fill the position with a non-competitive transfer
from another agency location. We concur with the AJ that the Commission's
role is not to enforce or adjudicate the agency's hiring policies (such as
a candidate's ineligibility), even if the agency errs in the application
of its policies. The Commission's role is to address discrimination.
There is no indication that the Human Resources office in the agency
did anything but make an honest attempt to apply non-discriminatory,
agency policy to the vacancy in question. Taking into consideration all
undisputed evidence and drawing all reasonable inferences in complainant's
favor, we find that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected classes.
We therefore AFFIRM the agency's final decision finding no discrimination.
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
April 7, 2006
__________________
Date
1ELM 353.344, is the section of the agency's Employee and Labor Relations
Manual policy pertaining to temporary assignments that later become
vacant.