Claudetta Stokes,
Complainant,

v. 

John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120083129

Hearing No. 450-2008-00101X

Agency No. 1G-755-0020-07

DECISION

On July 7, 2008, complainant filed an appeal from the agency's July 1,
2008, final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq.  The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. § 1614.405(a).  For the following reasons, the
Commission VACATES the agency's final order.

 ISSUE PRESENTED

Whether the Administrative Judge (AJ) properly issued a decision without a
hearing in which she found that complainant was not subjected to unlawful
discrimination.

BACKGROUND

During the period at issue, complainant worked as an Entrance Control
Clerk at the Dallas, Texas Air Mail Center. 1  

On September 13, 2007, complainant filed an EEO complaint.  Therein,
complainant alleged  that she was discriminated against on the basis of
disability (back and hand impairment) when in August and September 2007,
the agency failed to recognize complainant as Employee of the Month even
though she was qualified; failed to grant her lunch breaks and other
breaks; and took away thirty minutes from the end of her tour of duty.  

At the conclusion of the investigation, complainant was provided 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.  Over complainant's objections, the AJ assigned
to the case granted the agency's April 16, 2008 motion for a decision
without a hearing and issued a decision without a hearing on June 24,
2008 in which she found no discrimination. The agency subsequently issued
a final order fully adopting the AJ's findings.

CONTENTIONS ON APPEAL

On appeal, complainant contends that she has proven that she is an
individual with a disability, and the AJ improperly issued a decision
without a hearing finding no discrimination because there are facts
in dispute.  The agency requests that we affirm its final order.  

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 EEOC Management Directive 110, 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. (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").

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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
We find that the AJ properly issued a decision without a hearing because
complainant failed to show that a genuine issue of material fact exists

In a claim such as the instant one which alleges disparate treatment, and
where there is an absence of direct evidence of such discrimination, the
allocation of burdens and order of presentation of proof is a three-step
process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (applying the analytical framework described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA disparate
treatment claim). First, complainant must establish a prima facie case
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. Kimble
v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).

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).  Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination.  St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Although the burden of production, in other words,
"going forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant.  Burdine, 450
U.S. at 256.

In this case, we assume arguendo that complainant is an individual with
a disability and established a prima facie case of discrimination.
Nonetheless, we find that the agency provided legitimate,
non-discriminatory reasons for its actions.  Specifically, the record
indicates that complainant was not nominated for an Employee of the Month
award in August 2007 because her supervisor was on vacation during the
time employees were chosen for the award.  Management further stated that
complainant's supervisor nominated her to receive the award in September
2007, but complainant was not randomly selected to receive the award.2  

With respect to complainant's claim that she was not given lunch breaks
or breaks and 30 minutes were taken away from her tour in August and
September 2007, complainant's supervisor stated that she does not recall
30 minutes being taken away from complainant's tour or complainant not
receiving breaks.  The supervisor further stated that if complainant
told her that she did not get a break, she always resolved the matter.
Additionally, we note that complainant's clock ring records indicate that
she worked at least eight hours a day with thirty minute lunches during
the relevant time period and do not reflect that she was deprived of
any work time or breaks of any kind.  We find that complainant failed
to provide any evidence from which a reasonable fact-finder could
conclude that the agency's explanations for its actions were pretext
for unlawful discrimination.  Thus, we find that the AJ properly found
no discrimination.  
  
CONCLUSION

After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, and a preponderance of the record evidence does
not establish that discrimination occurred. 
      
STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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, D.C. 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

08/25/09
__________________
Date


1 The record reflects that that complainant works as an Entrance Control
Clerk pursuant to a limited duty assignment.  Complainant's regular
assignment is as a Parcel Post Distribution Clark.   
2 We do note, however, that complainant received the Employee of the
Month award in October 2007.  


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0120083129




U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C.  20013  



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0120083129