Gwendolyn A. Reid, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 3, 2009
0120091626 (E.E.O.C. Sep. 3, 2009)

0120091626

09-03-2009

Gwendolyn A. Reid, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gwendolyn A. Reid,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091626

Hearing No. 530-2007-00111X

Agency No. 4A-070-0219-06

DECISION

On March 7, 2009, complainant filed an appeal from an agency final order,

dated February 13, 2009, concerning an equal employment opportunity

(EEO) complaint claiming employment discrimination in violation of

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. The appeal is deemed timely and is accepted

pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the

Commission AFFIRMS the agency's final order.

BACKGROUND

During the period at issue, complainant worked as an EAS-17 Supervisor,

Customer Service at the Jersey City Post Office, Journal Square

Station, in Jersey City, New Jersey. Complainant was issued a notice

of suspension for failing to follow instructions, and was instructed

to attend retraining. Believing that the agency's actions were the

result of age discrimination, complainant contacted the EEO office.

Informal efforts to resolve complainant's concerns were unsuccessful.

Thereafter, complainant filed the instant formal complaint, claiming:

(1) on July 21, 2006, she was issued a Notice of Seven Day Suspension for

"Failure to Follow Instructions", and;

(2) By letter dated August 4, 2006, she was instructed to report to the

North Bergen, New Jersey Post Office for retraining, effective August 21,

2006.

At the conclusion of the investigation, complainant was provided 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. On, August 25, 2008, however, the agency submitted a

"Motion for a Decision without a Hearing." After considering the motion,

as well as complainant's October 17, 2008 response, the AJ agreed that

the complaint did not warrant a hearing and granted the agency's motion.

In her February 9, 2009 decision, the AJ found no discrimination.

The AJ reasoned that complainant failed to establish a prima facie case

of age discrimination. Specifically, the complainant did not identify

an appropriate comparator and she did not present any other evidence

of a nexus between her age and the agency's actions. Regarding claim

(1), the agency stated that two individuals cited by complainant were

not similarly situated because they were not "late end" supervisors

and therefore had different responsibilities. Further, a much younger

"late end" supervisor with similar conduct issues was also disciplined.

Regarding claim (2), the agency found that complainant failed to identify

a younger employee who also failed to dispatch collected mail, and was

not required to attend training.

Even assuming that complainant had presented a prima facie case,

the agency found that management articulated legitimate reasons for

its actions. As a "late end" supervisor, complainant was responsible

for ensuring that all mail brought into the facility was dispatched

for processing by the end of the day. If complainant missed the last

dispatch truck during her tour, she was required to make sure the

remaining mail at the Station is transported to the plant that day.

This duty was fulfilled by visually inspecting the building prior to

leaving, to guarantee that all the mail was dispatched. On July 18,

2006, complainant failed to do this. Consequently, the next day, tubs

of collection mail for July 18, 2006, were found in the Journal Square

Station. As a result, complainant was issued a Seven Day Suspension

(claim 1). According to management, complainant was sent for retraining

(claim (2)), because of the July 18, 2006 as well as complainant's

own statements. In particular, complainant's supervisor stated that

complainant repeatedly explained to him that she had not been trained

to perform certain supervisory duties.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that she was subjected to discrimination

as alleged.

CONTENTIONS ON APPEAL

Complainant submitted no contentions on appeal. In response, the agency

proffered the August 25, 2008 motion filed with the AJ and requested

that we affirm its finding of no discrimination.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ's legal and

factual conclusions, and the agency's final order adopting them, de novo.

See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from

an agency's final action shall be based on a de novo review . . ."); see

also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)

(providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed

de novo"). This essentially means that we should look at this case

with fresh eyes. In other words, we are free to accept (if accurate)

or reject (if erroneous) the AJ's, and agency's, factual conclusions and

legal analysis - including on the ultimate fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id. at Chapter 9,

� VI.A. (explaining that the de novo standard of review "requires that

the Commission examine the record without regard to the factual and

legal determinations of the previous decision maker," and that EEOC

"review the documents, statements, and testimony of record, including

any timely and relevant submissions of the parties, and . . . issue its

decision based on the Commission's own assessment of the record and its

interpretation of the law").

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. 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.

The Commission finds that the AJ properly granted the agency's motion

for a decision without a hearing. There is no genuine issue of material

fact in the instant case.

Under the ADEA, it is "unlawful for an employer . . . to fail or refuse

to hire or to discharge any individual or otherwise discriminate against

any individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's age." 29

U.S.C. � 623(a)(1). When a complainant alleges that he or she has been

disparately treated by the employing agency as a result of unlawful

age discrimination, "liability depends on whether the protected trait

(under the ADEA, age) actually motivated the employer's decision."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)

(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,

[complainant's] age must have actually played a role in the employer's

decision making process and had a determinative influence on the

outcome." Id.

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

As noted above, management presented legitimate non-discriminatory

reasons for issued the suspension and training. Complainant's supervisor

attested that one of complainant's responsibilities was to ensure that

any mail brought into the building, whether from customers at the counter

or carriers bringing in collections, was prepared and dispatched to

the plant for processing at the end of each day. While complainant

was aware of this duty, on July 18, 2006, she did not conduct a

visual inspection and as a result not all the mail was dispatched.

In response to complainant's contentions that other acting supervisors

did not inform her that they had placed mail on the truck skid, this

was not typically done. Moreover, complainant's supervisor stated that

it was not their responsibility to make sure no mail remained overnight.

According to complainant's supervisor, he decided to send complainant to

training because of the July 18, 2006 event as well as other incidents.

He attested that complainant, on at least eight occasions, would say

"Do not assume that I know this" in response to his requests that she

perform certain tasks. The manager explained that it was necessary

for complainant to "be more involved with all aspects of the operation"

and her own statements regarding her lacking knowledge, caused him to

send her to retraining. Additionally, he noted that training is not

a punitive action, but rather an opportunity to build skills.

While complainant contends that other employees were responsible for

the July 18, 2006 incident, the Commission finds that she has failed to

prove that management's actions were a result of age discrimination.

Complainant believed that the manager's actions were motivated by

discriminatory animus because when he came to the Journal Square Station

"he was not receptive to me because of my age and level of maturity.

He realized early on that when interacting with me he must maintain

a level of self control and dignity which he was not accustomed to."

With respect to the training, complainant attested that the manager

"wanted me gone" and sending her to training was "a way for him to make

this happen." We do not find that complainant's statement establish a

nexus between her age and the manager's actions. Complainant has not

shown that the agency's reasons were pretext.

CONCLUSION

Accordingly, the agency's decision finding no discrimination was proper

and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

September 3, 2009

__________________

Date

2

0120091626

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120091626