0120092127
07-05-2012
Anthony F. Nguyen, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Anthony F. Nguyen,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120092127
Hearing No. 480-2008-00443X
Agency No. 4F-900-0291-07
DECISION
On April 17, 2009, Complainant filed an appeal from the Agency's March 27, 2009, final order concerning his 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. 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
1. Complainant alleged that the Agency retaliated against him when it issued a letter of warning about a month after he filed a formal complaint, but subsequently rescinded and expunged the letter. The Agency dismissed this claim for failure to state a claim because Complainant no longer suffered from an adverse employment action. Did the Agency err in dismissing this reprisal claim?
2. Complainant delivered mail along routes when primary carriers were unavailable to do so. He alleged that from July to September 2007, he was assigned less overtime than the primary carriers who delivered mail along the same routes. An EEOC Administrative Judge (AJ) dismissed the July 2007 denials of overtime because Complainant did not contact an EEO counselor about these discrete acts until September 12, 2007. Did the AJ err in dismissing the July 2007 denials of overtime?
3. Did the AJ err in issuing summary judgment in the Agency's favor on the remaining disparate treatment and hostile work environment claims?
BACKGROUND
Complainant worked as a full-time Carrier Technician, T-6, at the Agency's Will Rogers Station in Santa Monica, CA.1 As a T-6 carrier technician, he filled in for primary carrier technicians whenever they were not working that day. So each day, he delivered mail on a different route (route 211, 217, 218, or 219),2 depending on which primary carrier technician was out.
Over time, Complainant began to feel that his supervisor was giving him less time to complete mail deliveries compared to the primary carrier technicians. And because he often did not have enough time to complete his mail routes, Complainant frequently had to request overtime or auxiliary assistance to finish the job. He would request overtime or auxiliary assistance by filling out "Form 3996, Carrier-Auxiliary Control."3 But his supervisor often denied his requests, even though Complainant was on the "Overtime Desired List," which identified carriers who wanted to work overtime.4
Initial Claims of Discrimination
Complainant contacted an EEO counselor on September 12, 2007.5 He included a three-page handwritten statement of his allegations, dated September 22, 2007. Complainant alleged discrimination and harassment on the bases of race, national origin, and age when:
1. his supervisor denied his requests for overtime and auxiliary assistance
a. in June 2007, while the Agency conducted a three-week audit on routes;
b. on July 23, 2007 to refuel at a gas station, thereby creating a safety issue;
c. on July 26, 2007.
2. management did not allot him sufficient time to "complete heavy swings" on July 16, 2007 and August 13, 2007.
3. his supervisor falsely accused him of talking on a cell phone while driving when he had actually been talking with the chief steward on the phone while standing behind his parked vehicle on July 19, 2007.
4. his supervisor yelled at him and treated him in a disrespectful manner at various times.
On December 12, 2007, Complainant filed an EEO complaint. On January 3, 2008, the Agency accepted the complaint. The Agency framed the allegations as whether Complainant was subjected to discrimination and harassment on the bases of race, national origin, and age since June 2007 with respect to:
1. route audits;
2. management assigned him less overtime than his peers, citing that his peers were faster;
3. denied time to refuel, creating a safety issue;
4. denied time to travel from his route to a swing of another route;
5. yelled at and treated in a disrespectful manner;
6. accused of talking on phone while driving;
7. assigned heavy/overburdened swings with less time than required;
8. on October 11, 2007, he was told to lock out and go home.
Additional Claim of Discrimination
On March 3, 2008, the Agency amended the complaint to include another claim: whether the Agency discriminated against Complainant on the bases of race (Asian), national origin (Vietnamese), age, and retaliation for prior EEO activity when, on January 18, 2008, the Agency issued to Complainant a letter of warning for failing to follow instructions; performing poorly on the job; and expanding street time.
On March 7, 2008, a dispute resolution team found that management failed to establish just cause for issuing the January 18, 2008 letter of warning to Complainant. The dispute resolution team required the Agency to rescind and expunge the letter of warning from all records. Because the letter of warning had been rescinded and expunged, the Agency dismissed the amended claim. On June 6, 2008, Complainant wrote to object to the dismissal of this claim.
Summary Judgment Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing on May 24, 2008. The Agency issued a motion for a decision without a hearing on November 17, 2008.6 On March 18, 2009, the AJ issued a decision without a hearing, granting the Agency's motion for summary judgment.
The AJ framed the claims as follows:
Was Complainant subjected to race (Asian), national origin (Vietnamese), or age (59) discrimination by his supervisor when:
1. He was denied overtime on July 18, 19, 20, 22, 23, and 26, 2007, August 13, 20, 23, 27, 28, and 29, 2007, and September 12 and 17, 2007;
2. He was accused of talking on his cell phone while driving a postal vehicle on July 19, 2007;
3. His request to get gas for a postal vehicle was denied on July 23, 2007;
4. He was denied 4.5 hours of shop steward union time, and told to go home on October 11, 2007;
5. He was instructed to leave the office by 9:00 am to begin street deliveries sometime during the summer or the third quarter of 2007.
First, the AJ determined that each denial of overtime was a discrete act. Therefore, in order for a particular denial of overtime to be timely raised, it had to occur within 45 days of September 12, 2007, the day that Complainant contacted an EEO counselor. Hence, the AJ dismissed the July 2007 denials of overtime for being untimely raised, and considered on the merits the denials of overtime in August and September 2007.
For the August and September 2007 denials of overtime, the AJ found no comparative treatment evidence in the record to establish prima facie cases of disparate treatment on the bases of race, national, origin, or age. Specifically, the AJ found that Complainant failed to present supplemental evidence that substantially younger, non-Asian, or non-Vietnamese carriers were allotted overtime beyond the time designated by the Agency's Delivery Operations Information Systems computerized program (DOIS).
Incorporating the Agency's statement of facts in its motion for summary judgment, the AJ found that Complainant received more overtime than other carriers for delivering mail during July, August, and September 2007.
Even if Complainant had established prima facie cases, the AJ found that Complainant's supervisor articulated a legitimate, non-discriminatory reason for denying overtime. According to the supervisor, Complainant's workload did not justify overtime based on the computer program DOIS.
To show pretext, Complainant argued that the supervisor was not supposed to use DOIS to project the time needed for a carrier's daily workload. But the AJ found this to be insufficient to show pretext, reasoning that the supervisor's reliance on a flawed projection system to assess all carriers only establishes that this was a universally applied mistake in which the supervisor lacked a discriminatory motive.
As for the denial of shop steward time, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The supervisor stated that she denied Complainant's request for union time because the office was short-staffed that particular day. Moreover, the supervisor stated that she sent Complainant home after he persisted in requesting union time and became loud. The AJ found that there was no evidence of pretext.
For the hostile work environment claim, the AJ found that there was no evidence that the Agency's actions were motivated by Complainant's race, national origin, or age. Moreover, the alleged incidents were not sufficiently severe or pervasive enough to establish a discriminatory hostile work environment.
The Agency issued a final order on March 27, 2009, adopting the AJ's decision of no discrimination.
CONTENTIONS ON APPEAL
Procedurally, Complainant argues that he was not given the chance to review the 117-page transcript of his deposition before responding to the Agency's motion for summary judgment. The Agency required him to travel to its facility in Long Beach, CA to review the deposition in person, without a translator. Even though he wanted to go, management would not grant him the official time to go to Long Beach to review the deposition. Moreover, Complainant claims that the Agency never sent him a copy of his deposition testimony after it issued its motion for summary judgment, which referenced parts of his deposition. This hampered his ability to oppose the motion for summary judgment by highlighting statements in his deposition that the disputed the material facts presented by the Agency.
Next, Complainant contends that the record was not adequately developed for summary disposition on the denial of overtime claim. The Agency denied Complainant's discovery requests for comparative evidence that would show how much time his supervisor gave the primary carrier technicians to finish the same routes that Complainant worked on during the relevant time period.7 Without documentation to show how much time the supervisor allotted to the primary carrier technicians, Complainant could not show that he was allotted less time to complete the same routes compared to the primary carriers that were not in his protected groups. Therefore, he maintains he was denied the chance to establish a prima facie case of disparate treatment.
Moreover, Complainant maintains that the AJ incorrectly analyzed what little comparator evidence there was in the record. In determining that Complainant received more overtime than other carriers for delivering mail during July, August, and September 2007, the AJ failed to note that he was on the "Overtime Desired List," and the AJ should have compared his overtime allotment to other similarly situated carriers on the "Overtime Desired List." Instead, the AJ erroneously compared his overtime hours to carriers not on the "Overtime Desired List," thereby incorrectly concluding that he received more overtime than other carriers.
Complainant also maintains that the AJ erred in finding that he did not establish a hostile work environment claim because his supervisor did not (1) discipline anyone else for submitting Form 3996; (2) call anyone else a "rat ass," or (3) yell at anyone else on the work floor.
Finally, Complainant contends that the Agency erred in dismissing his claim of reprisal for prior EEO activity when the Agency issued a January 18, 2008 letter of warning for failing to follow instructions; performing poorly on the job; and expanding street time.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
We must 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). 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).
Denials of Overtime
Initially, we determine that the AJ did not err in dismissing the July 2007 denial of overtime claims for failing to timely contact an EEO counselor. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
Here, we determine that each denial of overtime in July 2007 constituted a discrete action. And under EEOC regulation 29 C.F.R. � 1614.105(a)(1), Complainant had to bring these discrete actions to the attention of an EEO counselor within 45 days. Here, the record shows that Complainant first contacted an EEO counselor about the July 2007 denials of overtime on September 12, 2007, which was beyond the 45-day limitation period. EEO Dispute Resolution Specialist's Inquiry Report 1. Complainant has not challenged the dismissal of the incidents for the disparate treatment issues and has not presented any sufficient reasons for extending the limitation period. Therefore, we find that the AJ appropriately dismissed the July 2007 denial of overtime claims.
We now turn to the timely-raised claims about the supervisor's denials of overtime or auxiliary assistance on August 13, 20, 23, 27, 28, and 29, 2007, and September 12 and 17, 2007.
Although there is a lack of documentary evidence showing that the supervisor denied Complainant's requests for overtime more frequently than those made by the primary carriers who delivered along the same routes, the parties appear to be in agreement on this fact. Therefore, for the sake of argument, we will assume that Complainant established a prima facie case of disparate treatment, i.e., the supervisor denied Complainant's requests for overtime more frequently than those made by the primary carriers.
We find that the supervisor articulated a legitimate, non-discriminatory reason for denying Complainant's overtime requests more frequently than those of other carriers. She stated that she generally required Complainant and other carriers the same amount of time to finish delivering their routes, based on the DOIS computer system. She acknowledged that while most carriers generally finished their routes in the allotted time, they may have occasionally requested overtime. Supervisor's Declaration, at 3-4. Complainant, on the other hand, often asked for more time to deliver the mail than most other carriers. Id. at 3. The supervisor frequently found his requests for overtime to be excessive and not warranted based on the volume of mail and the timely performance of other carriers. Supervisor's affidavit, at 1-2. Therefore, she often ended up denying Complainant's requests of overtime.
Complainant contends that the supervisor's reasons are not legitimate and are a pretext for discrimination. He argues that the supervisor's reliance on the DOIS computer system to evaluate carrier performance is not a legitimate metric. He maintains that route delivery performance depends primarily on the volume of mail and on the person carrying it. Complainant's Declaration, at 36.
In essence, Complainant disputes his supervisor's business decision to use the DOIS computer system as a metric for determining the proper amount of time for completing routes, rather than use Complainant's criteria of mail volume and the individual characteristics of a carrier. However, the Commission notes that an employer's business decision cannot be found discriminatory simply because it appears that the employer acted unwisely, or that the employer's decision was in error or a misjudgment.8 Here, we find that the supervisor's decision to use an allegedly erroneous, but universally applied, measure of work performance is not sufficient, by itself, to show pretext.
Therefore, we determine that the AJ did not err in issuing summary judgment on the claims of denials of overtime for August and September 2007, finding that Complainant did not establish he was discriminated against on the bases alleged.
Letter of Warning
On March 7, 2008, a dispute resolution team found that management failed to establish just cause for issuing a January 18, 2008 letter of warning to Complainant. The dispute resolution team required the Agency to rescind and expunge the letter of warning from all records.
The Agency subsequently dismissed Complainant's discrimination claim about this letter of warning, reasoning that the claim was now moot since the letter was rescinded and expunged from Complainant's files. Complainant challenges the Agency's dismissal of this claim.
EEOC regulation 29 C.F.R. �1614.107(a)(5) provides that an agency can dismiss a complaint that is moot. The U.S. Supreme has determined that a case is moot when: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). However, a central question in a mootness inquiry is whether there is any relief to which the complainant would be entitled if he prevailed.
In his initial EEO complaint about the letter of warning, Complainant requested the following remedies: withdraw the letter of warning; discipline the responsible management officials; and transfer the responsible management officials to another facility. EEO Counselor's Report, at 42. Complainant did not allege, either in his EEO complaint or in his affidavit, that he is entitled to compensatory damages relating to the letter of warning.9 Because Complainant did not request compensatory damages for the issuance of the letter of warning, and the letter of warning has been rescinded and expunged, we find that the Agency correctly dismissed this claim as moot.
Denial of union time and order to go home on October 11, 2007
We agree with the AJ that the supervisor articulated a legitimate, nondiscriminatory reason for denying Complainant's request for union time that day, because the office was short-staffed that particular day. The supervisor stated that she sent Complainant home after he persisted in requesting union time and became loud.
Complainant contends that the supervisor's actions were racially motivated in that she used the term "rat ass," which he contends is a racial or ethnic slur. We have found no examples, however, of the term "rat ass" being used as a racial slur against Asians or an ethnic slur against Vietnamese. Moreover, the supervisor stated in her declaration that she used the term in the following statement, "I don't give a rat's ass about what it is you're doing." We find no evidence in the record, beyond Complainant's bare assertion, that this term was used in a racially or ethnically derogatory manner. Therefore, we find that the AJ correctly found that there was no evidence of pretext.
Hostile Work Environment Claim
To establish hostile work environment harassment by a supervisor, Complainant must show five things. First, Complainant must be a member of a statutorily protected class. Second, the supervisor engaged in unwelcome verbal or physical conduct. Third, the unwelcome conduct was based on Complainant's statutorily protected class. Fourth, the unwelcome conduct either (a) affected a term or condition of employment, or (b) had the purpose or effect of unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment. Fifth, there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11.
Here, Complainant essentially alleges that his supervisor subjected him to hostile work environment harassment based on race (Asian), national origin (Vietnamese), and age (59) when:
1. His supervisor did not give him sufficient time to complete his deliveries and denied his requests for overtime and auxiliary assistance;
2. His supervisor denied his request for 4.5 hours of union time on October 11, 2007;
3. His supervisor sent him home on October 11, 2007 by yelling at him and treating him in a disrespectful manner;
4. His supervisor falsely accused him of talking on a cell phone while driving when he had actually been talking with the chief steward on the phone while standing behind his parked vehicle on July 19, 2007.
5. His supervisor denied his request to get gas for a postal vehicle on July 23, 2007;
6. His supervisor instructed him to leave the office by 9:00 am to begin street deliveries sometime during the summer or the third quarter of 2007.
As we previously explained above, Complainant cannot establish the third element of a hostile work environment claim for incidents (1), (2), and (3), that the supervisor's conduct was based on Complainant's race, national origin, or age. As for the remaining conduct, we find that falsely accusing an employee of talking on a cell-phone, denying his request to get gas, and instructing him to begin his duties at a certain time, are not the types of unwelcome conduct that would be objectively severe or pervasive enough to constitute hostile work environment harassment. Therefore, Complainant has again not established a hostile work environment claim. Ultimately, we determine that the AJ did not err in issuing summary judgment on the hostile work environment claim in the Agency's favor.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, dismissing Complainant's claim over the letter of warning, and finding that Complainant did not establish discrimination on the bases 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
____7/5/12______________
Date
1 Complainant Deposition (Dep.) 15.
2 Id. at 34.
3 See id. at section 131.43; Handbook M-39, Management of Delivery Services (Handbook M-39), Section 122.23.
4 Report of Investigation (ROI), Exhibit (Ex.) 3.
5 EEO Dispute Resolution Specialist's Inquiry Report 1.
6 According to Complainant's appellate brief, he was allegedly given until December 3, 2008 to respond to the motion for summary judgment. On or around November 24, 2008, Complainant allegedly requested that the AJ extend the time for him to respond to the motion for summary judgment to December 17, 2008, because his non-legal representative would not be returning to work until December 1, 2008. Complainant maintains that he received a letter from the AJ on December 26, 2008, informing him that the AJ had approved his request for an extension to December 17, 2008 to submit his response to the Agency's motion for summary judgment. But because the extension date had already passed, Complainant did not submit a response to the motion for summary judgment.
7 Complainant included with his appellate brief a handwritten document dated July 5, 2008. The document shows that Complainant's non-legal representative submitted to the Agency's representative a request for additional discovery, such as clock rings, route analysis, and Form 3996 requests from Complainant and other primary carriers for the routes and time period in question.
8 EEOC Compliance Manual, Section 15: Race and Color Discrimination, EEOC No. 915.003 (Apr. 19, 2006), available at http://www.eeoc.gov/policy/docs/race-color.html.
9 In his affidavit, Complainant only alleged that he was entitled to compensatory damages for the denials of overtime. Complainant's affidavit, at 8.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120092127
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092127