Zella D. Shephard, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 5, 2009
0120073533 (E.E.O.C. Feb. 5, 2009)

0120073533

02-05-2009

Zella D. Shephard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Zella D. Shephard,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120073533

Agency No. 1C251001605

Hearing No. 530200600049x

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's July 3, 2007, final order 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.

Complainant alleged that the agency discriminated against her on the

bases of sex (female) and age (over 40) when, during her probationary

period, she was given an unjustifiably low evaluation on June 14, 2005,

and separated effective July 8, 2005. Following an investigation,

complainant requested a hearing before an EEOC Administrative Judge

(AJ). On June 27, 2007, the AJ issued a decision without a hearing,

finding that the agency did not discriminate against complainant.

Complainant was hired as a part-time mail handler and was assigned to

work the flat sorter (FSM) and other machines at the Clarksburg, WV,

postal facility; she had previously served several years as a Rural

Carrier Associate. The agency stated that complainant's performance

was unsatisfactory in several respects, e.g., mislabeling tubs of mail,

failing to learn schemes, erring on the FSM, and unable to keep machines

loaded; and she was terminated based on performance. Although complainant

contended that she had insufficient training and poor supervision and that

younger males were not removed for similar infractions, the AJ concluded

that the agency articulated legitimate, nondiscriminatory reasons for

its actions, and complainant did not demonstrate pretext, in that, the

agency asserted that all probationary employees were treated the same

and measured against objective standards, and it identified employees

of other classes that were retained and terminated.

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. 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, including those not specifically

addressed, 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.

CONCLUSION

Accordingly, the agency's decision is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

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

__02/05/2009________________

Date

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0120073533

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0120073533