0120070480
08-07-2008
Terri D. Tarr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terri D. Tarr,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070480
Agency No. 4C-440-0186-05
Hearing No. 530-2006-00008X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 10, 2006 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Complainant worked as a Carrier Technician (limited duty) at the Main
facility in Youngstown, Ohio. Complainant claimed that the agency
discriminated against her on the bases of race (African-American), sex
(female), color (brown), disability (back, neck), and age (43) when,
in April 2005, she was not selected for the Associate Supervisor Program
(ASP); and (b) she was removed from the 204-B acting supervisor program
(204-B).
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On September 20, 2006, the AJ issued a
decision without a hearing, finding that the agency did not discriminate
against complainant.
The AJ found that complainant failed to establish a prima facie case of
discrimination on any of the bases alleged. Regarding issue (a), the
AJ found that while complainant was successful through Stage 3 of the
ASP evaluation process, her interview was not as vibrant and responsive
as the interviews of the selectees, who achieved overall higher scores
and were chosen for the program.
Regarding issue (b), the Postmaster (PM) stated that it was time to rotate
some new employees in as 204-Bs and provide others an opportunity to act
as a supervisor. PM noted that complainant had been a 204-B for five
years, the longest-serving acting supervisor, and, while he retained
the newer 204-Bs, he rotated complainant out.
Even assuming, arguendo, that complainant establish a prima facie case
of discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and complainant did not
demonstrate pretext.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and 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). 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).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision,
because the AJ's issuance of a decision without a hearing was appropriate,
and the preponderance of the evidence of record does not establish that
discrimination occurred.
Accordingly, the agency's decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
__08/07/2008________________
Date
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0120070480
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070480