Judy A. McDermott,
Complainant,

v. 

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120081333

Agency No. 6H-000-0001-06

 Hearing No. 550-2007-00390X

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's appeal from the agency's December 24, 2007 final action concerning an equal employment opportunity (EEO) complaint claiming unlawful 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.  

During the period at issue, complainant was employed as a Postal Inspector at the agency's San Francisco Postal Inspection Service in San Francisco, California.

On April 11, 2006, complainant filed the instant formal complaint.  Therein, complainant claimed that the agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:  

(1) on January 30, 2006, she was denied pre-retirement training;

(2) on February 7, 2006, she was awarded a Bose radio without a certificate or write-up while other employees received monetary awards in December 2005;

(3) she has served in an undesirable assignment since July 2002;

(4) on March 1, 2006, she learned that someone had heard [Inspector-in-Charge (INC)] yelling "[Complainant] is going to file an EEO, that fucking bitch, I do not want her here, I do not want her in this division;"

(5) on March 9, 2006, she was informed that [Assistant Inspector-in-Charge (AIC)] had made negative comments about her; and

(6) on March 14, 2006, she was excluded from a closed door meeting.

On April 27, 2006, the agency issued a partial dismissal.  The agency accepted claims (4) and (6) for investigation.  The agency dismissed claims (1), (2) and (5) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.  The agency dismissed claim (3) for stating the same claim that is pending before or has been decided by the agency or Commission, pursuant to 29 C.F.R. § 1614.107(a)(1).

At the conclusion of the investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ).  On October 5, 2006, the AJ issued a document entitled "Order on Complainant's Request to Reinstate Dismissed Issues and Order on Discovery."  Therein, the AJ determined that the agency properly dismissed claims (1) and (5) for failure to state a claim.  The AJ found that in regard to claim (1), complainant failed to demonstrate that she suffered harm to a term, condition or privilege of her employment when she was told if she wished to attend the seminar, she must do so in San Francisco instead of in Albuquerque, New Mexico.  Regarding claim (5), the AJ concluded that complainant did not show how [AIC's] purported remarks affected the terms or conditions of her employment.  The AJ found that the agency properly dismissed claim (3) for stating the same claim that is pending before or has been decided by the agency or Commission.  

However, the AJ found that the agency improperly dismissed claim (2) for failure to state a claim.  Specifically, the AJ concluded that complainant receiving a Bose radio without a certificate or write-up while other employees received monetary awards results in harm or loss to a term, condition, or privilege of employment and that complainant states a claim.  The AJ determined that she would address claim (2) along with complainant's other accepted claims (claims (4) and (6)).

On October 18, 2007, the AJ issued a Notice of Intent to Issue a Decision Without a Hearing (Notice), allowing the parties to file a written response to the Notice.  The record reflects that both parties responded.  On December 21, 2007, the AJ issued a decision without a hearing, finding no discrimination concerning claims (2), (4) and (6).  Therein, the AJ found that complainant did not establish a prima facie case of disparate treatment on the bases of sex or retaliation.  The AJ nevertheless found that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.

On December 24, 2007, the agency issued a Notice of Final Action, implementing the AJ's decision finding no discrimination.

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, 322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988).  A fact is "material" if it has the potential to affect the outcome of a 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.

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 action, 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 (M0701)


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 19848, Washington, D.C. 20036.  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 (S0900)


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 (Z1199)

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 that the Court appoint an attorney to represent you and that the Court 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 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

May 5, 2008
__________________
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036





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