0120170683
07-18-2018
Karlene G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karlene G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120170683
Hearing No. 531-2015-00189X
Agency No. 1K-211-0040-14
DECISION
On December 21, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 22, 2016, 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., and 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 order.
ISSUE PRESENTED
Whether Complainant was discriminated against on the bases of her race (African-American), color (Brown), sex (female), and/or disability (cervical radiculopathy) when she was not selected for an Operations Support Specialist Position on August 24, 2014.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Linthicum Incoming Mail Facility (IMF) in Linthicum, Maryland. On October 17, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Brown), and disability (cervical radiculopathy) when she was not selected for an Operations Support Specialist Position on August 24, 2014.2
At all relevant times, M1 (African American, Brown, male) was the Manager, In-Plant Support, at the IMF. The In-Plant Support office is responsible for several functions at the IMF, including but not limited to: (a) developing and updating sort plans for all equipment at the IMF; (b) installing, implementing, integrating new technology into the daily operations at the IMF; and (c) ensuring that all new and existing programs at the IMF are compliant with the Sarbanes-Oxley (SO) law.
During 2012-2013, W1 (African-American. brown, female) served as an Operations Support Specialist in the In-Plant Support Office at the IMF. After W1 resigned from the position in 2013, the Agency posted a vacancy announcement for the Operations Support Specialist position. W2 (African American, brown, female) applied for the position. M1 selected W2 for the position. After being notified that she was selected, however, W2 declined the position.
During the summer of 2013, there was a need for assistance in the In-Plant Support Office at the IMF. The In-Plant Support office did not have the resources to train someone to perform this work and needed someone who already possessed the knowledge, skills and abilities.
M2 (White, male), a Mail Processing Equipment (MPE) Mechanic at the IMF, had prior relevant experience and knowledge because he had worked from 2006-2008 in the In-Plant Support office. M2 also was experienced with ensuring SO compliance from working as an MPE Mechanic in the maintenance department. M2 also possessed knowledge regarding how to develop and update soft plans. M2 also taught courses in Basic Computer, Advanced Computer, and Home Networking for ten years at a community college. M1 knew that M2 possessed the knowledge and experience pertaining to the duties and responsibilities of the In-Plant Support office.
M1, on August 24, 2014, asked M2 to serve in a quasi-detail in the In-Plant Support office for an hour or two a night to assist that office. During his tour, M2 worked primarily as an MPE mechanic, and spent one or two hours each tour performing duties for the In-Plant Support Office. The Agency did not provide any training to M2 when he served in this quasi-detail in the In- Plant Support office.
On May 27, 2014. the Agency posted a vacancy announcement for a permanent position of Operations Support Specialist at the IMF. Twelve applicants applied for the posted position, including M2 and Complainant.
A Review Committee was appointed to review applications and submit recommendations for the successful candidate. M1 was not involved in the Review Committee process of reviewing applicants and recommending applicants for interviews. The three members of the review committee were R1, R2, and R3. The record indicates that none of the members of the Committee had prior knowledge of Complainant's race, color, sex or medical condition.
Each of the three members of the review committee independently reviewed the applications and rated the applicants based on their applications and the six posted requirements of the position. The members of the Review Committee met and jointly discussed and rated the applicants based on their review. They agreed that any applicant who scored a 0 for any requirement would be automatically ineligible for an interview. The Review Committee did not discuss or review personal information about the applicants, such as their race, color, sex or medical conditions.
Their review of Complainant's application revealed that Complainant possesses no experience, knowledge or skills in creating or maintaining bundle sort plans on any Postal Service equipment, nor did he possess any experience, knowledge or skills related to the duties and responsibilities of the Operations Support Specialist position.
Each of the three members of the committee independently rated Complainant as 0 (zero) for the following three qualification requirements:
1. Qualification/Requirement 1: Knowledge of postal operations, including mail processing, delivery. facilities. equipment, and operational staffing functions.
2. Qualification/Requirement 4: Ability to implement, monitor and evaluate quality and operational improvement programs and procedures to ensure they meet established specifications.
3. Qualification/Requirement 6: Ability to communicate orally and in writing at a level sufficient to work with customers, contractors, and major mailers and to prepare information related to operational programs.
The Review Committee did not recommend Complainant for an interview for the position. The Review Committee recommended M2, W2 (African American, Brown, female) and W3 (African American, Brown, female) for interviews.
The Agency asserts that M2 was selected for the position because he was considered the most qualified candidate.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's November 4, 2015, motion for a decision without a hearing and issued a decision without a hearing on September 15, 2016. Complainant's opposed the Agency's motion. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted no new contentions on appeal.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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. Dep't of Def., 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. Cf. 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).
We find that the AJ properly issued his decision without a hearing upon determining that the record was adequately developed for summary disposition.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Assuming for purposes of this decision that Complainant establish prima facie cases of discrimination based on race, sex, color, and disability, we find that the Agency provided legitimate, nondiscriminatory reasons for Complainant's non-selection, i.e., Complainant was not recommended for an interview due to her rating by the Review Committee, and M1 selected the applicant he considered to be best qualified.
We turn to Complainant's burden to establish that the Agency's reasons for its actions were pretext for discrimination. Like the AJ, however, we find that Complainant did not meet her burden. The record indicates that the Review Committee members who rated the applicants were unaware of their race, color, sex or disabilities. Likewise, two of the applicants who were recommended for interviews, W2 and W3, were female. We find that Complainant's claim, alone, is not sufficient to show that she was subjected to discrimination as alleged.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__7/18/18________________
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 Complainant was diagnosed with Cervical Radiculopathy. She states that her condition is aggravated by lifting, pushing and pulling of heavy equipment. The record shows that the Agency previously accommodated her for her condition in 2012 by reducing her hours.
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