0120070769_Tebbs
02-27-2009
Joyce M. Tebbs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joyce M. Tebbs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070769
Agency No. 1C191001105
Hearing No. 170200500571X
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 24, 2006, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
At all times relevant to this complaint, complainant worked as an EAS-17
Supervisor, Distribution Operations (SDO), in the agency's Southeastern
Pennsylvania Processing and Distribution Center. Complainant asserts
that she is an individual with a disability (surgically repaired pelvis,
degenerative joint disease, hypertension, and depression).
The record reveals that complainant first believed that she was subjected
to discrimination in August 2002, when she was assigned to the DPS
maximization detail and felt she was being singled out for harder,
more onerous work. In May 2004, complainant again believed that she
was being subjected to discrimination when she had difficulty getting a
lateral reassignment. Complainant stated that she was "sure" that she
was discriminated against on June 14, 2004, when a detail position to
which she was assigned was cut short after one week. Further, on August
26, 2004, complainant learned that another individual was detailed
into the Safety Office and she was not. And finally, on November
24, 2004, complainant became aware that a coworker was detailed to an
Officer-In-Charge (OIC) position at the Coatesville Post Office and she
was not.
Complainant initiated EEO Counselor contact on December 3, 2004.
On February 11, 2005, complainant filed a formal EEO Complaint
of discrimination on the bases of disability (surgically repaired
pelvis, degenerative joint disease, hypertension, and depression) when
individuals outside of her protected class were selected for numerous
detail positions, and she was not.
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 requested
a hearing before an AJ, and on September 28, 2006, the AJ issued a
decision without a hearing, finding that complainant failed to establish
discrimination as alleged. The AJ found that complainant failed to
contact an EEO Counselor in a timely manner, and in the alternative,
that she failed to establish that she was a qualified individual with a
disability as defined by the Rehabilitation Act. The AJ further found
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, which complainant failed to establish were pretext for
discrimination. The agency subsequently adopted the AJ's findings.
ANALYSIS AND FINDINGS
As this is an appeal taken from an AJ decision without a hearing, 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.
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).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his
opposition." Anderson, 477 U.S. at 250. In the hearing context, this
means that the administrative judge must enable the parties to engage in
the amount of discovery necessary to properly respond to any motion for
a decision without a hearing. See 29 C.F.R. � 1614.109(g)(2) (suggesting
that an administrative judge could order discovery, if necessary, after
receiving an opposition to a motion for a decision without a hearing).
Here, we find that the AJ's decision without a hearing was appropriate,
as no genuine issue of material fact is in dispute.
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record reveals that complainant knew or should have known that she
was subjected to discrimination in August 2002, when she felt she was
being singled out for harder, more onerous work than individuals not in
her protected class. After complainant believed she was discriminated
against in May 2004, she was informed by the agency on or about June 3,
2004, of her right to pursue the EEO process, but she chose not to do so.
On June 14, 2004, complainant again felt that she was discriminated
against but did not initiate contact with an EEO Counselor. Further,
complainant failed to initiate EEO Counselor contact after she became
aware, on August 26, 2004, that another individual was detailed into
the Safety Office and she was not. Finally, on November 24, 2004,
complainant became aware that a coworker was detailed as an OIC at the
Coatesville Post Office and she was not. Complainant finally initiated
EEO Counselor contact on December 3, 2004.
After a thorough review of the record, we find that all of complainant's
claims except the November 24, 2004 non-selection are well beyond
the 45-day deadline. Therefore, we affirm the dismissal of all the
claims except for the non-selection for the detail to the Coatesville
Post Office. We will analyze that claim below.
Disparate Treatment
Complainant alleges that the agency discriminated against her based on her
disability when they failed to assign her to the detail at the Coatesville
Post Office. 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). She must generally establish a prima facie case by demonstrating
that 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
For purposes of analysis, we assume, but do not find, that complainant
established a prima facie case of disability discrimination with
regard to her non-selection for the detail position at the Coatesville
Post Office. We now turn to the agency's articulated legitimate,
nondiscriminatory reason for complainant's non-selection. The agency
articulated that while complainant had been detailed into an OIC position
on two previous occasions, the details were to substantially smaller
postal facilities compared to the Coatesville Post Office. Further,
at the time the detail position became available, complainant had not
worked for the agency since January 5, 2004, other than for one week
in June 2004. Additionally, most of complainant's experience was as
a supervisor at the Processing and Distribution Center, not in a Post
Office. Therefore, she was not as qualified for the position as the
selectee.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons
are pretext for discrimination. In a non-selection case, pretext may
be demonstrated by a showing that complainant's qualifications are
observably superior to those of the selectee. Williams v. Department
of Education, EEOC Request No. 05970561 (August 6, 1998). However, an
agency has broad discretion to carry out personnel decisions and should
not be second-guessed by the reviewing authority absent evidence of an
unlawful motivation. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259 (1981). Here, complainant failed to establish that
her qualifications are observably superior to those of the selectee.
Further, complainant failed to establish that the agency's decision not
to select her for the detail position was more likely than not motivated
by discriminatory animus. Therefore, we AFFIRM the agency's finding of
no discrimination.
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
February 27, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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