0120112068
07-19-2012
Vivian M. Guillory, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Vivian M. Guillory,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120112068
Hearing No. 550-2010-00348x
Agency No. 1F-941-0026-10
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's January 20, 2011, final action 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
Whether Complainant was discriminated against based on her race and national origin (Hispanic/El Salvador), age (60) and reprisal (for opposing discrimination) when since December 2009 she was given fewer work hours than her coworkers.
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as a Part Time Regular (PTR) Mail Processing Clerk at the Agency's San Francisco Processing & Distribution Center, North Peninsula DDC in Brulingame, California.
On March 29, 2010, Complainant filed an EEO complaint alleging the above issue. At the conclusion of the investigation she requested a hearing before an EEOC Administrative Judge (AJ), who issued a decision without a hearing finding no discrimination. In making a decision without a hearing the AJ found that there were no genuine issues of material fact.
The record reflects that in April 2009 the Agency notified Complainant that due to a reduction in the mail she became an excess full-time clerk and had the option of becoming a PTR clerk in her installation with retreat rights or being reassigned outside installation as a full-time regular employee outside her craft with retreat rights back to her installation. She was advised in the letter that if she chose to become a PTR she may work less hours. Complainant elected to become a PTR. In May 2009 she was notified that because the number of clerks electing to change to PTR status exceeded the number of PTR assignments needed she would be scheduled to work no more than four hours per pay period. In her affidavit Complainant wrote that her schedule has been four hours a week.
The AJ found that Complainant failed to make out a prima facie case of reprisal discrimination because she provided no evidence that she engaged in protected activity. The AJ also found that Complainant failed to establish a prima facie case of discrimination because there was no evidence that similarly situated individuals outside Complainant's protected groups received better treatment. The AJ recited the uncontested statement by Complainant's second line supervisor that all PTRs at Complainant's facility worked four hours a week. The second line supervisor specifically referred to four of them, and the AJ noted all were younger than Complainant. Three were significantly younger, i.e., 7 to 23 years younger, and two had Asian names. The AJ found that even if Complainant made out a prima facie case there was no evidence suggesting that the Agency's explanation for Complainant's limited work hours was pretext to mask discrimination.
Complainant stated that since the summer of 2009 she opposed discrimination by supporting the complaints of other employees relating to involuntary reassignments and reduced hours, and they are included in a group of cases, which she gave the name of. She did not give any details such as the method of the opposition or participation, who it was directed to, the basis of discrimination she contested, or what forums were involved, despite being asked in the investigation to describe her EEO activity.
The Agency's final action implemented the AJ's decision. On appeal Complainant makes no comment.
In opposition to the appeal Agency argues that its final action should be affirmed.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. 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). 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We find the record was adequately developed for summary disposition, and we agree with the AJ's finding that there are no genuine issues of material fact.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
We agree with the AJ that Complainant failed to establish a prima facie case of discrimination on any bases. While she wrote that she engaged in prior EEO activity she gave no probative details of such, despite being asked to so. It is not clear whether the alleged EEO activity was based on a protected basis such as race, national origin, sex, disability, age and so forth. Moreover, we agree with the finding of the AJ that even if Complainant made out a prima facie case of discrimination she failed to show the Agency's explanation for Complainant's limited hours was pretext to mask discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action which implemented the AJ's decision finding no discrimination.
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
July 19, 2012
__________________
Date
2
0120112068
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112068