0120122391
11-02-2012
Ester F. Francisco, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Ester F. Francisco,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120122391
Hearing No. 480-2009-00533X
Agency No. 1F-921-0011-09
DECISION
On May 8, 2012, Complainant filed an appeal from the Agency's April 5, 2012, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issue presented is whether the Administrative Judge properly issued a decision without a hearing, and whether she properly found that Complainant had not established that the Agency discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Midway Processing & Distribution Center (P&DC) in San Diego, California. On March 18, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII and the Age Discrimination in Employment Act of 1967 (ADEA) when:
1. on December 22, 2008, she was informed that she would be excessed and involuntarily reassigned, effective January 30, 2009; and
2. during March 2009, she was not awarded a bid for an APO/FPO1 position.
The Agency issued a letter of Partial Acceptance/Partial Dismissal on April 20, 2009, in which it dismissed Complainant's two additional claims in her complaint, based on failure to state a claim. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On March 29, 2010, the Agency filed a Motion for a Decision without a Hearing. Complainant filed a response to the Agency's Motion on April 16, 2010. The AJ assigned to the case issued a decision without a hearing on March 29, 2012.
In her decision, the AJ found that Complainant was a Mail Processing Clerk at the Midway P&DC, and since November 30, 2007, she had been assigned to the Priority Mail Section. Until October 2008, APO/FPO mail was processed at the Midway P&DC. To process the APO/FPO mail at the Midway P&DC, it was transported 26 miles from the Margaret Sellers (MLS) P&DC (also in San Diego, California) to the Midway P&DC, processed, and then sent back to the MLS P&DC for dispatch. The Priority Mail Section at the Midway P&DC performed the APO/FPO duties, but those APO/FPO duties were not part of the formal bid positions. In October 2008, the APO/FPO processing functions were transferred to the MLS P&DC (and its existing employees) to increase efficiency and decrease mail delivery time. Complainant remained at the Midway P&DC at that time.
Soon after the transfer of the APO/FPO functions, 4 or 5 bid positions at the Midway P&DC were eliminated due to reduced volume. Bid positions are excessed based on seniority. Four junior clerks at the Midway P&DC were excessed, including Complainant (a fifth clerk bid into another position before being excessed). On December 22, 2008, Complainant was informed that she would be excessed and involuntarily reassigned as of January 30, 2009. She became an unassigned regular at the MLS P&DC at that time.
At the MLS P&DC, the APO/FPO functions were part of the bid positions of the Mail Processing Clerks (in contrast to at the Midway P&DC). On February 19, 2009, Complainant applied for 2 bid positions as a Mail Processing Clerk APO/FPO/Foreign Tour 3 Manual Operations at the MLS P&DC. The 2 bid positions went to the most senior bidders; Complainant had less seniority than both of the successful bidders. Complainant believed that she should have been awarded one of the bid positions because she had previously performed the work when she was at the Midway P&DC.
In her decision, the AJ noted that Complainant did not contest the Agency's dismissal of her other claims, and declined to do so sua sponte. The AJ found that Complainant had established a prima facie case of reprisal discrimination with respect to the January 2009 excessing from her position and reassignment to the MLS P&DC. She found that Complainant had engaged in previous protected EEO activity and that the relevant Agency officials were aware of Complainant's EEO activity. Complainant's prior EEO activity occurred within 3 months of the actions at issue in this complaint. However, the AJ found that Complainant could not establish a prima facie case of reprisal discrimination with respect to her March 2009 non-selection for the APO/FPO Mail Processing Clerk positions. The AJ found that there was no evidence that any Agency officials with knowledge of Complainant's prior EEO activity played any role in awarding the bid positions to the successful bidders, neither of whom had previous EEO activity. Rather, the evidence showed that a computer analyzed the position bids of qualified employees and awarded the positions in accordance with seniority.
The AJ further found that, assuming Complainant had established a prima facie case of reprisal discrimination on each claim, the Agency had articulated legitimate, nondiscriminatory reasons for its actions. As to claim 1, the Agency had explained that due to reduced mail volume and revenue at the Midway P&DC, a decision was made to reduce the number of bid positions at that location, and that the decision on who to excess was made based on seniority. Complainant was one of the four most junior employees. As to claim 2, the Agency explained that the APO/FPO positions at the MLS P&DC were awarded solely based on seniority. The AJ concluded that Complainant had not shown these reasons to be pretext for discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
In her argument in support of her appeal, Complainant argued that the AJ had made factual findings in error, which she believed affected the outcome of the analysis. She argued that the Agency had targeted her for excessing and that it manipulated the evidence to justify the outcome. Complainant argued that her extensive representation of other employees in their EEO complaints motivated the Agency to target her for adverse actions. The Agency submitted a statement in which it opposed Complainant's appeal and urged the Commission to affirm its final action. It argued that none of the factual findings of the AJ which Complainant contested were material to the outcome of the legal analysis of her case.
STANDARD OF REVIEW
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 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 the 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 Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "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").
ANALYSIS AND FINDINGS
Decision without a hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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, 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); Murphy v. Dep't of the Army, EEOC Appeal No. 01A04099 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In the instant case we find that the AJ's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant when considering Complainant's allegations. There was no need to resolve any issues of credibility. We do not find that the facts which Complainant contested in her argument on appeal were material to the AJ's legal analysis of Complainant's complaint. Therefore, we find that the issuance of a decision without a hearing was appropriate.
Disparate treatment
To prevail in a disparate treatment claim, 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 Construction 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. Texas Department of Community 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that she was discriminated against as alleged. Assuming that Complainant established a prima facie case of reprisal discrimination on each of her claims, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions. The Agency presented testimony that reduced mail volume necessitated excessing a number of employees. It also articulated that the APO/FPO positions were awarded based solely on seniority. We do not find that Complainant has established that either of these reasons were pretext for discrimination based on her own EEO activity, or on the EEO representation that she has undertaken for numerous other Agency employees.
CONCLUSION
Based on a thorough review of the record and of the contentions of the parties on appeal, we AFFIRM the Agency's final order, which implemented the AJ's finding that Complainant did not establish that she was discriminated against as alleged.
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
November 2, 2012
Date
1 APO (Army) and FPO (Fleet) are types of military mail.
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0120122391
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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