0120091648
05-20-2009
Rosemarie Porch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rosemarie Porch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091648
Agency No. 4A-070-0035-08
Hearing No. 530-2008-00277X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 16, 2009 final order concerning her 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.
On January 30, 2008, complainant filed the instant EEO complaint.
Therein, complainant claimed that the agency discriminated against her
in reprisal for prior protected EEO activity when on October 11, 2007,
her application for employment was not accepted and she was asked to
leave the building.
.
Following an investigation by the agency, complainant was provided a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ) or a final decision
(FAD) by the agency. Complainant timely requested a hearing. The AJ
issued a decision without a hearing finding no discrimination.
The record indicates that complainant previously worked for the agency
as a city carrier and was terminated in January 12, 2004, for failure
to follow supervisory instruction. Prior to her termination the agency
disciplined her six times for failing to perform her duties as well as
excessive absences and tardiness.
The Agency Handbook, EL-312, 514.11 addressed the issue of rehiring
previously terminated employees. "It is the Postal Service policy to
refuse employment -- career or non career, competitive or non competitive
. -- to persons who were removed, outside the probationary period from
the Postal Service or other federal employment for cause. . . "
The Commissions regulations allow an AJ to issue a decision without
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 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, 245 (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, 322-323 (1986). The AJ may
properly issue a decision without 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.0120024206 July 11, 2003).
The agency cited its policy as reason for denying complainant any
re-employment opportunity with the agency. The AJ found that complainant
failed to provide any evidence to establish the agency's reason to be
a pretext for discrimination. Complainant failed to provide names of any
similarly situated employee who received better treatment under similar
circumstances. The AJ noted that complainant reiterated her version of
the incidents which led to her termination in 2004, citing to them as
the agency's discriminatory motive for the instant matter of 2007. The
AJ found that assuming arguendo that she could establish a prima facie
case, the agency articulated legitimate, non-discriminatory reasons
for its actions which were not pretextual. After the evaluation of the
evidence, the AJ found that complainant was not discriminated against on
the basis of retaliation for her prior EEO activity when on October 11,
2007, the agency rejected complainant's application for reemployment
and instructed her to leave the building.
On appeal, complainant merely recounts the incident of October 11, 2007,
which culminated in agency officials requesting her to leave the worksite.
However, we note that the AJ properly determined that after the agency
had filed its motion for summary judgment, complainant did not respond
by the date of a pre-hearing conference; and that after the AJ gave
complainant fifteen additional days to respond to the agency's motion,
she still did not file a response.
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 AJ's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred.
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
May 20, 2009
__________________
Date
2
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091648