0120131106
06-20-2013
Margaret P. Grant, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Margaret P. Grant,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120131106
Hearing No. 520-2012-00361X
Agency No. 4B-070-0257-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 27, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Bulk Mail Technician at the Agency's Rahway, New Jersey Post Office.
On November 28, 2011, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her on the bases of race/national origin (African-American), color (black), age (over 40), and/or in reprisal for prior EEO activity when:
on September 26, 2011, she was issued a Notice of Removal effective on October 28, 2011, for failure to meet the requirements of her position.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On October 5, 2012, the AJ issued notice of her intent to issue a decision without a hearing, to which both parties responded. On November 28, 2012, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final action.
In her decision, the AJ found no discrimination. In reaching this conclusion, the AJ noted that before becoming a Bulk Mail Technician at the Rahway facility, Complainant had worked at the Whippany, New Jersey, Processing and Distribution Center. However, she was excessed from the Whippany position when that office closed. Complainant bid on the Bulk Mail Technician in Rahway and received the position pursuant to her seniority. At that time, Complainant was informed that she must pass all the requirements of the Bulk Mail Technician position to be permanently placed into the position.
Further, the AJ noted that on September 26, 2011, Complainant was issued a Notice of Removal for failing to meet the requirements of the Bulk Mail Technician position, effective October 28, 2011. The record reflects that Complainant did not pass the prerequisite testing to qualify for the training at the Bulk Mail Academy in Oklahoma.
The AJ noted that the Postmaster stated that on September 26, 2011, he issued Complainant a Notice of Removal for "Failure to meet the Requirements of your Position." In the Notice of Removal, the Postmaster found that on March 31, 2011, Complainant took the prerequisite typing test #714. The Postmaster noted that Complainant failed the test and, because the Rahway Post Office had no other work for her, Complainant was issued a Notice of Removal dated April 7, 2011, for failure to meet the requirements of the position. The record reflects after Complainant received the notice, management was informed that Complainant was not required to pass test #714 before completing training at the National Center for Employee Development in Oklahoma.
The Postmaster stated, however, Complainant was nevertheless required to meet other qualifications of BMEU Technicians and was therefore scheduled to take the 425 Business Mail Entry Prerequisite test on June 3, 2011. Complainant failed the 425 test and therefore did not meet the requirements for the Bulk Mail Technician position. The Postmaster stated that during the relevant period, Complainant was provided work "which must cease due to the conversion of 5 Part Time Flexible (PTF) on August 27, 2011, to Non-Traditional Full Time assignments, which guarantees them 30-34 hours per week."
Further, the Postmaster stated that on May 23, 2011, Complainant was offered a Part Time Flexible (PTF) Mail handler position at the Network Distribution Center. Complainant declined the PTF position, citing medical issues. However, the Postmaster stated that Complainant claimed she "had medical restrictions that prohibited [her] from being a mail handler. However, we have no records on file to support [her] claim of being on restricted duty, nor did [she] provide any documentation to support that [she was] on any type of restricted duty." The Postmaster also stated that on June 5, 2011, Complainant was offered the opportunity to be voluntarily reassigned to the Hillsborough, New Jersey, Post Office as a Sales and Service Associate. Complainant declined the Hillsborough position because it required training and examination.
The Postmaster stated that on September 22, 2011, he conducted a Pre-Disciplinary interview with Complainant in the present of her shop steward. The Postmaster stated, "when questioned about [her] inability to meet the requirements of [her] position and [her] refusal to accept other assignments offered to [her], [she] stated a letter of removal would not be timely because [she] took the exam back in June and have been in [her] current position for several months. I stated, to my knowledge [she] were issued a Letter of Removal due to failure to pass the exam and meet the requirements of the position. [Shop steward] clarified this information by stating the letter of removal was issued, but rescinded because the typing portion of the exam did not constitute qualifying for the position. However, I stated [she] did not pass the BMEU Pre-requisite Qualifying written exam on June 3, 2011, and this is the reason [she did] not meet the requirements of the position."
Complainant asserted that because she had been at the Rahway Post Office for a period of time, she should be allowed to remain at the office as an unassigned regular clerk. The Postmaster stated that he reminded Complainant that there was no available position for her and "because all of our positions are already bid by regular clerks and now the NFTS clerks were also assigned duties. I further stated that [she] remained here in Rahway to provide [her] with an opportunity to take the exam, and since [she] failed, we allowed [her] an opportunity to decide on other position options during this time and that we have been creating work for [her] to keep [her] productive. Again, we no longer have any duties for [her] to perform since the conversion of our Part-Time Flexible employees to NTFT assignments and they are therefore guaranteed 30-36 hours of work. In addition, [she] were told when [she] applied for the BMEU position required training and testing."
The Postmaster stated that Complainant was in violation of Section 665.13 of the Employee and Labor Relations Manual. Section 665.13 states "employees are required to discharge their assigned duties conscientiously and effectively." Moreover, the Postmaster stated that Complainant's race, national origin, color, age and prior protected activity were not factors in his determination to remove her from Agency employment.
Complainant asserted that a named female Bulk Mail Technician (F1) bid on the same position but was not required to take the same test as Complainant had been required to do. However, the Postmaster stated that F1 had been trained in the responsibilities of a Bulk Mail Technician and worked as a Bulk Mail Technician before being excessed and then reinstated at the Rathway Post Office. As a consequence, F1 did not have to complete the requirements for new Bulk Mail Technicians. Specifically, the Postmaster stated that when the Bulk Mail technician position "became open and [F1's] name [was] submitted to the district, because she [was] performing the following duties in a bulk mail position and had pass[ed] the proper, required training, she did not have to be retrained in Oklahoma. [F1] did Bulk Mail Training during the period of 1/11/2009 to 2/01/2009; she was the back up for the BMEU of Rahway. She was excess[ed] out of Rahway from 3-29-2008 to 7-04-2009 [due] to a Function 4 review. She received retreats right on 7/04/2009 to come back to Rahway, because of the vacancies that were established in the Rahway Post Office which was authorized by the district. She was previously performing the duties in the bulk mail department prior before being excess out of the office. Her job bid did not require her to take most of the training, because she was already performing the duties of that position."
Based on this evidence of record, the AJ found that Complainant did not establish a prima facie case of race/national origin, color, age or reprisal discrimination. The AJ further found that even assuming Complainant established a prima facie case of discrimination, the responsible Agency officials articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext for discrimination.
The instant appeal followed. Complainant, on appeal, argues that F1 was given a Bulk Mail position without required training or testing. Complainant further argues that when she "failed to qualify for the position she was given a removal. This is unfair treatment for the appellant, combined with the information that she was not given the proper materials to study for the test, left her in an impossible situation created by her employer." Moreover, Complainant argues that the Postmaster subjected her to a hostile work environment because of her prior protected activity.
ANALYSIS AND FINDINGS
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination by summary judgment. Complainant has not identified any material facts in dispute which require resolution through a hearing. The AJ's decision properly summarized the relevant facts established during the investigation, and referenced the appropriate regulations, policies, and laws. Complainant did not prove, by a preponderance of the evidence, that the decisions made here were motivated by discriminatory animus toward Complainant's race, national origin, color, age or prior protected activity.
Based on our careful review of the record and consideration of all arguments presented on appeal, the Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
June 20, 2013
__________________
Date
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0120131106
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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