0120080840
07-09-2009
Jacquelyn A. Berry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jacquelyn A. Berry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080840
Hearing No. 532-2007-00010X
Agency No. 4C-430-0081-06
DECISION
On November 30, 2007, complainant filed an appeal from the agency's
November 15, 2007, final order concerning her equal employment opportunity
(EEO) complaint alleging 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. 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.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) properly granted summary
judgment in this case.
BACKGROUND
During the relevant time, complainant worked as a City Letter Carrier in
Columbus, Ohio. Complainant alleged that she was discriminated against
on the bases of race (Black) and sex (female) when on various dates from
April 24, 2006 through June 3, 2006, she was not provided full days of
light duty work. According to complainant, she was on light duty from
April 27, 2006 through June 3, 2006 and worked only three to three and
a half hours per day, rather than eight hours per day. She maintained
that C-1, a white male, was treated differently than she when he was
provided more work hours while on light duty.
A-1, supervisor, states that he assigned the complainant what work
there was available for her to do during the time period at issue, but
states that there were occasions when there simply was no work for her
to perform. The evidence of record shows that complainant was limited
to lifting no more than fifteen pounds and was restricted as to the
frequency of climbing, kneeling and bending/stooping while on light duty.
A-1 explained that as a light duty employee, the complainant was not
guaranteed eight hours of work per day. A-1 also indicated that C-1
was a carrier technician and was on light duty during a different time
period than the complainant. Because he was a carrier technician and
was trained on more than one route, A-1 maintained it was easier to find
work for C-1 because he could work multiple routes.
A-2, Acting Manager, corroborated A-1's statement. She maintained that
she was informed by the complainant's supervisors that there were times,
while complainant was on light duty, that there was no work available
for her. Furthermore, A-2 stated that C-1 was trained on more than
one route, had been at the station for many years, knew every route and
could double case.
On August 21, 2006, complainant filed an EEO complaint alleging that
she was discriminated against as stated above. 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 AJ. Complainant timely requested a hearing. Over the complainant's
objections, the AJ assigned to the case granted the agency's August 3,
2007 motion for a decision without a hearing and issued a decision without
a hearing on November 6, 2007. 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.
In her decision, the AJ made the following findings of fact: complainant
failed to establish a prima facie case of discrimination based on race
and/or sex because she failed to show that she was treated differently
than a similarly situated employee, not of her protected group under
similar circumstances. C-1, according to the AJ, was not similarly
situated to complainant because he was a carrier technician trained for
several routes, whereas complainant was a city letter carrier trained
on one route. The AJ also found, however, that the agency articulated
legitimate, non-discriminatory reasons for providing complainant less
than eight hours of work per day while she was on light duty, i.e.,
the lack of available work within her light duty restrictions, and that
complainant did not establish pretext. 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.
Complainant did not raise any new contentions on appeal, but she did
provide a response in opposition to the agency's motion. The agency
provided a brief on appeal that repeats its earlier assertions and
requests that the AJ's decision be affirmed.
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").
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. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is
not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only
upon a determination that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the AJ's
decision referenced the appropriate regulations, policies, and laws.
Moreover, we find that the AJ properly issued a decision without a hearing
because complainant failed to show that a genuine issue of material
fact exists. In her response, complainant maintained that she could:
[O]ffer . . . testimony of a series of events that can be construed as
plausible if not substantiated and willful acts against her prior [to]
this claim of discrimination which would then show probable retaliation
toward the complainant that will strengthen her claim.
According to complainant, A-2 initiated an investigation against
her that alleged she had filed a false workers' compensation claim.
According to complainant, the investigation was "eventually dropped."
Although complainant asserts that a material fact exists as to whether
management may have held animus towards her, we find that, even if true,
this is not material because there is no evidence that said animus was
based on complainant's race or sex. The agency has provided legitimate
nondiscriminatory reasons for its actions that complainant failed to
show are pretextual. For the foregoing reasons, we concur with the
AJ's determination and find that summary judgment was appropriate in
this case.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final order.
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, D.C. 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 (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 (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
______07-09-09____________
Date
2
0120071456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120080840
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