0120090048
02-18-2009
Kathy S. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathy S. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090048
Agency No. 1F-901-0073-07
Hearing No. 480-2007-00669X
DECISION
Complainant filed an appeal with this Commission from the agency's August
26, 2008 final action which implemented the August 20, 2008 decision of
the EEOC Administrative Judge (AJ) who found no discrimination.
Complainant alleges 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. Specifically, complainant alleged that the
agency discriminated against her on the bases of sex (female), color
(dark-skinned African-American), and in reprisal for prior protected
EEO activity when from April 1, 2007, through June 3, 2007, she was not
scheduled to work overtime at the Los Angeles Production and Distribution
Center, Florence Dock.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation (ROI) and requested a hearing before
an AJ. Over the objection of complainant, the AJ issued a decision
without a hearing (summary judgment).
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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).
To prevail in a disparate treatment claim, 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 complainant
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).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
Upon review, the Commission finds that the AJ's grant of summary judgment
was appropriate because there exists no genuine issue of material fact
that would warrant a hearing. In his decision, the AJ concluded that
because the agency had articulated legitimate, nondiscriminatory reasons
for not providing complainant with overtime at the Florence Dock, he
was not required to address whether complainant had established a prima
facie case on each basis. In finding that the agency had articulated a
legitimate, nondiscriminatory reason for its action, the AJ noted that
the male (Person A) who was assigned overtime at the Florence Dock was
assigned overtime because the collective bargaining agreement provided
that overtime was to be scheduled among qualified employees performing
similar work in the work location where the employees regularly worked;
that complainant was regularly assigned to the Pau Dock; and that
complainant's Supervisor and the Acting Manager of Distribution Operations
(MDO) believed that Pau Dock was complainant's regular assignment based
on her pay location and that the two also believed that Florence Dock, to
which Person A was regularly assigned, was Person A's regular assignment,
based on his pay location. The AJ also found that complainant failed
to present evidence that the agency's articulated reason was pretext
to mask unlawful discrimination, reasoning that demonstrating that
the agency acted upon incorrect information was not sufficient to
demonstrate discrimination. The AJ also noted that sometime in May
2007, when the overtime matter was brought to the attention of the
MDO by complainant's union representative, both complainant's work
assignments and Person A's assignments were changed, assigning them both
to the Florence/Pau Docks. The AJ further noted that beginning June 3,
2007, complainant's Supervisor regularly rotated Sunday overtime at the
Florence Dock between complainant and Person A. The AJ noted also that
complainant's Supervisor had approved complainant to work 87.81 hours of
overtime from April through June 2007 and had allotted Person A 80.02
hours of overtime during the same period of time, notwithstanding that
complainant had less seniority than Person A.
The agency has articulated a legitimate, nondiscriminatory reason for
its action in not granting complainant overtime at the Florence Dock from
April to May 2007. Complainant has failed to establish that the agency's
reasons were mere pretext to hide prohibited discrimination. Further,
construing the evidence in the light most favorable to complainant,
complainant has not shown by a preponderance of the evidence that the
agency's actions were motivated by discriminatory animus towards her.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant has failed to carry this burden.
The agency's final action finding no discrimination is 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
February 18, 2009
__________________
Date
5
0120090048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013