Lee Pai, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 16, 2009
0120090023 (E.E.O.C. Jan. 16, 2009)

0120090023

01-16-2009

Lee Pai, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Lee Pai,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090023

Agency No. 4F926018707

Hearing No. 480-2007-00655X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's August 26, 2008 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 the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

Complainant alleged that the agency discriminated against her on the

bases of race (Asian) and age (52) when she was not converted to Full-Time

Regular status on April 26, 2007.

We must first determine whether it was appropriate for the EEOC

Administrative Judge (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. 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).

The courts have been clear that summary judgment is not to be used as

a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st

Cir. 1975). The Commission has noted that when a party submits an

affidavit and credibility is at issue, "there is a need for strident

cross-examination and summary judgment on such evidence is improper."

Pedersen v. Department of Justice, EEOC Request No. 05940339 (February

24, 1995).

The undisputed record shows that complainant has been a Part-Time Flexible

Clerk (PTF) at the Norco Post Office since April 28, 2005. The Norco Post

Office is part of the Santa Ana Performance Cluster. On January 29, 2007,

a job opening for a Full-Time Regular Clerk (Position #4) was posted.

The bid was open to Full-Time Regular Clerks. A Full-Time Regular Clerk

(C1), who was temporarily disabled at the time, was the only Clerk to

bid on the position and it was awarded to her on February 14, 2007.

Pursuant to the Collective Bargaining Agreement and the local Memorandum

of Understanding, if the successful bidder is temporarily disabled,

management may require the employee to provide medical certification that

the employee will be able to perform the duties of the bid position within

six months of the bid. On February 14, 2007, the Norco Postmaster (RMO)

directed C1 to provide such medical certification. On March 2, 2007,

C1's doctor stated that he believed she would be able to assume the

full duties of the position within the requisite six months. However,

on March 30, 2007, C1's doctor advised RMO that C1's restrictions were

permanent and would preclude her from performing the duties of Position

#4. Accordingly, on April 9, 2007, the position was re-posted, but no

Full-Time Regular Clerks bid on it and on April 19, 2007 the posting was

withdrawn.1 Between the time that C1 initially bid on the position and

her doctor certified that she could not perform the full duties of the

position, the Pacific Area headquarters notified various offices within

the Santa Ana Cluster that it received authorization to withhold up to 61

residual assignments. On April 24, 2007, RMO notified the local union

president that she was withholding Position #4 pursuant to the Pacific

Area authorization. Because the vacancy was withheld, complainant was

not given an opportunity to be promoted to Full-Time Regular.

The AJ concluded that the record is devoid of evidence that similarly

situated comparison employees received more favorable treatment than

complainant. In addition, the AJ found that the undisputed record shows

that at the time that complainant would have been eligible to be assigned

to Position #4, the Pacific Area already mandated withholding residual

assignments.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate and a preponderance of the record evidence does

not establish that discrimination occurred.2

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

January 16, 2009

Date

1 An assignment that remains vacant after the completion of the voluntary

bidding process is defined as a "residual vacancy." Once the position

becomes a residual vacancy, the senior PTF is eligible to be assigned

to the position and converted to Full-Time Regular.

2 We note that the record is devoid of evidence to support a finding of

pretext or discriminatory animus on the part of the responsible management

official.

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0120090023

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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