0120150826
04-18-2017
Matilde H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Matilde H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120150826
Hearing No. 471-2013-00119X
Agency No. 4-J-481-0122-13
DECISION
On August 28, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 30, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented before the Commission are: (1) whether an Equal Employment Opportunity Administrative Judge's (AJ) decision to issue a decision without a hearing was proper; and (2) whether Complainant established discrimination by preponderant evidence based on race (White), sex (female), and age (56).
BACKGROUND
During the period at issue, Complainant worked as a Postmaster, EAS-21 at the Agency's Clarkston Post Office facility in Michigan. On February 19, 2013, she filed an EEO complaint alleging discrimination on the above-named bases when she was (a) removed from an Officer-in-Charge (OIC) position, EAS-24 detail at the Sterling Heights Post Office in Michigan, on September 29, 2012; (b) not promoted to the EAS-24 Postmaster position in Pontiac, Michigan, on October 16, 2012; and (c) not promoted to the EAS 22 Postmaster position in Troy, Michigan, on October 17, 2012. The Agency accepted the complaint for investigation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. Therefore, her case was transferred to the appropriate EEOC District Office and assigned to the AJ.
On December 30, 2013, the Agency submitted a Motion for a Decision without a Hearing (Agency's Motion) to the AJ. On February 11, 2014, Complainant submitted a response objecting to the Agency's Motion. Over Complainant's objections, the AJ accepted the Agency's Motion, and, on July 18, 2014, issued a decision in which she found Complainant had not established discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ's decision. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
Complainant contends that the AJ should not have issued a decision without a hearing because before she was removed from her Postmaster, EAS-24, position, her supervisor (S1) asked when she planned to retire and asked whether it was true that she was injury-prone and a frequent user of limited duty. She further contends that less than three weeks later, she was removed from her position and replaced by a Black female who was 49 years old. Complainant contends that she was shocked at the change because she and S1 agreed that she was performing well in the position.
Regarding the two non-promotions, Complainant contends that her application for the positions were rejected in favor of two male applicants one 37 (Selectee 1); the other 43 (Selectee 2). Complainant further contends that she had more experience serving in higher lever offices than both selectees. Complainant believes that the circumstances surrounding her detail removal and non-promotions and the Agency's subjective reasons for taking these actions created material disputes of fact that could only be resolved by a hearing.
For its part, the Agency contends that Complainant's response to the Agency's Motion did not rebut the Agency's statements of undisputed facts, and that Complainant merely set forth her subjective disagreements with the Selecting Official's (SO) in this matter. Furthermore, the Agency maintains that as a matter of law its Motion and final order should stand.
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. (Aug. 5, 2015) (if 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 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. (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
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds 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, 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.
In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only after determining that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (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.
Per 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After reviewing the record in this case, we find that the record is adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. We note that the Agency's Motion was submitted to the AJ on December 3, 2013, and that Complainant submitted her response thereto on February 4, 2014. The Agency replied to Complainant's response on February 11, 2014. Thus, we find that the AJ's decision to issue a ruling without a hearing was proper.
Discrimination
Complainant alleges discrimination on the bases of race, sex, and age when she was removed from a detail assignment as OIC, and not promoted to two Postmaster positions, one located in Pontiac, Michigan and the other in Troy, Michigan. In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is generally a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, Complainant must prove by preponderant evidence that the legitimate reasons proffered by the Agency were pretexts for discrimination. Id. at 256. We presume, without so finding, Complainant has established prima facie cases of race, sex, and age discrimination.
We now look to see whether the Agency stated legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. Regarding Complainant's detail, the record reflects that Complainant's OIC detail was set to end on September 30, 2012. The record further reflects that Complainant served in the detail for nine months and when it ended, she was replaced by another employee. S1 stated that this other employee was given the opportunity to serve in the position because he wanted her to experience working in a higher-level office. S1 further stated when Complainant's detail ended, he offered her another detail at the Post Office in Roseville, Michigan, which Complainant rejected because she felt the commute was too far. We find that the Agency has met its burden to articulate a legitimate, nondiscriminatory reason for its action.
Regarding the two non-promotions, the record reflects that on August 21, 2012, the Agency posted Vacancy Announcement No. 66518709, for a Postmaster, EAS-22 position in Troy, Michigan. The announcement closed on September 5, 2012. See ROI, at 204-206. The same day, it posted Vacancy Announcement No. 66620128, for a Postmaster EAS-24 position in Pontiac, Michigan. See ROI, at 207-209. Complainant applied for both positions.
S1 assisted in conducting the interviews but the SO determined which applicants to place in the positions. The SO did not remember whether she considered any applicant's prior performance but knows that each applicant was interviewed and scored based on a set of standard questions. She stated that Complainant was not selected for either position because she interviewed poorly and scored 31 out of a possible 60 points and was not performing well in her current office. See ROI, at 172, 211-215. Following her non-selections, Complainant met with the SO to discern why she was not chosen for either position, and was told that it was because of her interview.
The record reflects that the individual chosen for the Pontiac, Michigan position scored 48.5 out of 60 points. The record further reflects that the person chosen for the Troy, Michigan position scored 40 out of 60 points. Based on SO's statements and information provided in the ROI, we find that the Agency has met its burden of providing legitimate, nondiscriminatory reasons for the non-promotions.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. To prevail on her claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons was pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward based on race, sex, and age.
Regarding the OIC detail, Complainant stated that S1 told her that she was performing well in the position and therefore, implicitly, argues that her detail should not have been taken away. There is nothing in the record indicating that Complainant would be allowed to serve in the position beyond the end-date of the detail. The record does show, however, that Agency policy mandates that temporary assignments to non-bargaining position are made only for the shortest practical time limits. See � 716.1 of the Agency's Handbook EL-312. Based on the totality of this evidence, we find that Complainant did not meet her burden to show pretext, despite her performance, when her OIC detail was not extended. As noted above, Complainant was offered the opportunity to serve in another detail but she declined.
Regarding the two non-promotions, Complainant stated that she had more experience working in Postmaster positions than either selectee. While this may be true, we note that the Agency stated that SO based her selections on each employee's interview. We note that the Agency provided the SO's interview notes, which support the reasons provided by the Agency for Complainant's non-selections.
Complainant also stated that S1 asked when she planned to retire and whether she was injury-prone and had been on limited duty. S1 explained that when the Agency offered employment incentives to Postmasters who were interested in retiring, he asked his assigned Postmasters about their retirement plans for staffing purposes. See ROI, at 165. S1 further explained that he does not recall asking Complainant whether she was injury-prone or if she had been on limited duty and there is no evidence in the file indicating otherwise. Nevertheless, assuming he had asked Complainant these questions, we find no persuasive evidence that it was because of discriminatory animus based on her race, sex or age. Therefore, we do not find a genuine issue of a material fact exists. Based on the above, we find that Complainant has not submitted sufficient proof showing that the Agency's reasons for her non-selections were based on legally, impermissible criteria.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision to issue a ruling without a hearing was proper. We also find that Complainant has not established discrimination by preponderant evidence based on race, sex, and age. Accordingly, we AFFIRM the Agency's final order, which fully adopts the AJ's ruling.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__4/18/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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