0120140112
10-31-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120140112
Hearing No. 420-2013-00133X
Agency No. 4G-350-0014-13
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 12, 2013 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.
BACKGROUND
During the period at issue, Complainant worked as a Full-Time Regular (FTR) Rural Carrier at the Agency's Andalusia, Alabama Post Office.
On December 31, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (African-American) and sex (female) when:
on October 16, 2012, she became aware she was not awarded a 40K route.1
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 4, 2013, the AJ issued a decision by summary judgment in favor of the Agency.
In his decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of race and sex discrimination. The AJ further found that assuming for the sake of argument only, Complainant established a prima facie case of race and sex discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
In finding no discrimination, the AJ found that the record developed during the investigation established the following undisputed facts. When Complainant became a FTR Rural Carrier on October 9, 2010, she successfully bid on, and was awarded, Route 006. During the relevant period, Rural Route 007 was posted and open for bidding from October 2, 2012 through October 11, 2012. Agency management notified all Rural Carriers that the bidding for Route 007 was automated and online. On October 2, 2012, Complainant successfully submitted a bid on Route 007. The AJ further noted that a named female Senior Rural Carrier was awarded the bid on Route 007. At that time, the name female Senior Rural Carrier was a FTR Rural Carrier assigned to Route 004 before she was awarded Route 007.
The record reflects that Complainant believed that when she submitted a bid on Route 007, her bid would automatically default to any other vacant route if her bid to Route 007 should fail. The record reflects that the posting for Route 007 cited that "bidding for the regular rural route(s) listed below is not only for this vacancy, but for any regular route(s) in the office that may become available as a result of filling the original route vacancy." Complainant was not the senior bidder on Route 007, and at the same time she was not awarded any route as a result of her bid on Route 007. The record reflects that Complainant maintained her present bid on Route 006.
The AJ noted that Complainant alleged that she was discriminated against by the Postmaster when he did not select her for the 40K route. In addition, Complainant alleged that an unnamed Rural Carrier Associate was provided with assistance when submitting a bid while Complainant was not provided such assistance. The AJ noted that Rural Carriers use the online bidding process to submit bids through the Human Capital Enterprise System (HCES). The AJ also noted that the employee's seniority date is taken into account when awarding the route to the successful bidder. The AJ determined that the bidding system takes away the potential for discrimination, and the selection is not made locally.
Further, the AJ noted that there was no selecting official for Route 007 and the resulting vacancy on Route 004. The AJ noted that local Agency management did not handle the selection process for rural routes, and also did now know the outcome of the bidding process until the awards were provided through HCES.
The AJ noted in his affidavit, the Postmaster stated that according to the HCES, Complainant only bid on Route 007. The Postmaster stated that Complainant was not awarded the 40K route because she was not the senior bidder, and that she kept her current route after the bidding process. The Postmaster further stated "under the bidding process, the Regular Rural Carriers use the online bidding process for Regular Rural Carriers. The bidding process takes into account the seniority dates of the employees for awarding the routes. This takes away the potential for discrimination in the process. The selection is not a local selection."
Further, the Postmaster stated that he advised Rural Carriers, including Complainant, to come to see him or the supervisor if they needed assistance with bidding on Route 007. The Postmaster stated "this is not the first opportunity that [Complainant] has participated in the online bidding process. Previously in the spring of 2010, the Andalusia Post Office went through its first automated bidding process. At that time, [Complainant] asked and received assistance from [a named supervisor]. [Supervisor] assisted numerous other Rural Carriers with their bids during the first automated cycle. This is not something required of [supervisor], never the less she assisted the employees in Andalusia. [Complainant] was assisted." Additionally, I have an open door policy and help employees with numerous issues, when asked. I would have assisted [Complainant], if she had approached me."
The Postmaster stated that during the second round of automated bidding in October 2012, he personally asked each carrier "at least twice if they had bid on the routes...it was during this time that I asked each employee. The posting was posted and an announcement was made of the posting on 10/02/12. It was explained at that time, that the bidding was automated and online. It was stressed to bid on every route that the employee would like."
The record also contains a copy of the supervisor's memorandum for the record dated November 1, 2012. Therein, the supervisor stated that in 2010, the Postmaster gave numerous service talks "advising rural employees that could be affected but the automated rural bidding process. Specifically he reiterated that if you were interested in moving in a particular route, you must bid on it when any route became vacant because all vacancies that occur during a rural route posting would be filled at the same time."
Further, the supervisor stated that in 2010, two routes became vacated because two employees retired from Agency employment. The supervisor stated at that time, she helped Complainant and another carrier through the bidding process. Specifically, the supervisor stated "in helping these employees with online automated bidding process, I coached both employees separately on how to complete this. Both of these RCA's [Rural Carrier Associates] bid on every available route in the office so that they would be selected for which ever routes were vacated during the process."
The supervisor stated that during the most recent bidding process, the Postmaster notified the employees during a service talk that Route 007 was available for online bidding on October 1, 2010. The supervisor stated that the Postmaster "also advised any employees that had any questions, to come and see him or me for assistance. I did not have any employees approach me and ask for assistance."
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race and sex. We discern no basis to disturb the AJ's decision.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.
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
October 31, 2014
__________________
Date
1 The record reflects that a carrier who is awarded a 40K route is guaranteed 40 hours of work each week.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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