01a53900
08-30-2005
Terri Gonzales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terri Gonzales v. United States Postal Service
01A53900
August 30, 2005
.
Terri Gonzales,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53900
Agency No. 4E-800-0557-03
Hearing No. 320-2004-00263X
DECISION
Complainant filed an appeal with this Commission concerning her complaint
of unlawful employment discrimination. Complainant alleged that she was
subjected to discrimination on the bases of race (Hispanic) and national
origin (Mexican-American) when, on April 26, 2003, she became aware that
since 2001, she has been denied the opportunity to work the 6th day of
rural route 2.
On March 21, 2005, an EEOC Administrative Judge (AJ) issued a decision
without a hearing finding that there was no genuine issue of material fact
in dispute, and concluded that complainant had not been discriminated
against. Specifically, the AJ found the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On March 30, 2005, the agency issued a decision finding no
discrimination. The agency fully implemented the AJ's decision.
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.
We find that the agency articulated a legitimate, nondiscriminatory reason
for denying overtime to complainant. The Supervisor of Customer Services
(Supervisor) stated that complainant was the secondary substitute for
Rural Route 2 from January 2001 through April 2003. The Supervisor
reported that, up until April 2003, Rural Carrier Associates (RCAs)
carried their own primary route all 6 days if the regular carrier
was absent and a secondary substitute was only used if the primary
substitute was not available. The Supervisor said that he did not know
if complainant was available to work a sixth day on Rural Route 2 during
those periods when the regular rural carrier was not available to avoid
paying overtime. The Supervisor commented that, to his knowledge,
the secondary substitute had never been scheduled to carry the sixth
day until April 2003 based on the practice of previous Postmasters.
The Supervisor stated that another secondary carrier for Rural Route 6
started carrying Rural Route 6 the same time complainant started carrying
Rural Route 2. The Supervisor asserted that all primary substitutes
carried all their sixth days if they were available. The Supervisor
stated that he was not aware of any instance from January 2001 through
April 2003 when other secondary carriers have been used when the primary
substitute was carrying the route for the week in order to avoid placing
the primary substitute in an overtime status. Complainant has failed to
rebut the agency's legitimate, nondiscriminatory reasons for its actions.
Complainant has failed to show, by a preponderance of the evidence, that
the denial of overtime was motivated by discrimination on the bases of
race or national origin.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
August 30, 2005
__________________
Date