01A12348
02-25-2002
Daniel E. Hill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Daniel E. Hill v. United States Postal Service (Southeast Area)
01A12348
February 25, 2002
.
Daniel E. Hill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A12348
Hearing Nos. 150-99-8178x, 150-A0-8908x, and 150-A0-8129x
Agency Nos. 1-H-321-0034-98, 1-H-321-0101-00, and 1-H-321-0121-00
DECISION
INTRODUCTION
This appeals concerns various complaints of discrimination filed by
Daniel E. Hill (�complainant�) against his employer, the United States
Postal Service (�the agency�). These complaints were consolidated for
processing and complainant ultimately requested a hearing before an
administrative judge (�the AJ�) of the U.S. Equal Employment Opportunity
Commission (�this Commission� or �EEOC�) to resolve them. However,
the AJ concluded that no hearing was necessary, and that complainant
could not prevail on any of claims the complaints contained.
The agency issued a final decision (�FAD�) adopting the AJ's findings of
fact and conclusions of law. Complainant, in turn, filed a timely notice
challenging this FAD and requesting a full hearing on the merits of his
complaints. We accepted his appeal under the authority of 29 C.F.R. �
1614.405(a). For the reasons set forth below, however, we agree with
the agency and the AJ that no hearing was necessary and that complainant
has not proven that any unlawful employment discrimination occurred here.
We therefore conclude that the FAD in question should be affirmed.
BACKGROUND
At all relevant times, complainant worked as a Supervisor of Distribution
Operations at the agency's Daytona Beach, Florida facility. From January
20, 1995 onward, however, he was out of work due to an injury sustained
on the job (stemming from an assault by a coworker) years earlier.
Complainant was paid with accrued annual and sick leave while he was
absent (and before his claim for workers' compensation benefits was
approved by the Department of Labor in December of 1997).
Complainant believes he should have been placed on paid administrative
leave during this period, since the injury that required him to miss work
occurred at the workplace and at the hands of another agency employee.
Complainant also contends that he never gave the agency permission to use
his annual and sick leave during his absence (i.e., he did not fill out
the necessary Forms 3971 authorizing withdrawal of his leave). He thus
argues that the agency discriminated against him on the bases of his age
(date of birth of December 4, 1941), disability (�reflex sympathetic
dystrophy�), and reprisal (for prior EEO activity) when it paid him using
his annual and sick leave without his permission. Complainant is thus
alleging that this action violated the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. � 621 et seq. (�the ADEA�) and/or
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. (�the Rehabilitation Act�).<1>
He filed a formal complaint to this effect on March 2, 1998 (�Complaint
#1�). He ultimately requested a hearing before the AJ, who issued
a decision without a hearing on January 30, 2001. In this summary
judgment, the AJ stated that there were no material issues in dispute
concerning this complaint, and that it had not been timely filed.
The AJ ruled in the alternative that complainant's age, reprisal, and
disability claims stemming from the leave issue should be dismissed either
because complainant had failed to show he was sufficiently aggrieved by
the agency's actions or because his complaint represented a collateral
attack on the Department of Labor's workers' compensation process.
The AJ then also decided that, on the merits, the complainant had not
met his burden of persuading the fact finder by a preponderance of the
evidence that the incidents surrounding the agency's use of complainant's
annual and sick leave amounted to any sort of unlawful discrimination.
Complainant filed another complaint (�Complaint #2�) on September 6,
2000, alleging that the agency had given him an unfair settlement
offer in connection with a different EEO complaint he had filed.
More specifically, complainant argued that the terms of the settlement
(which were not in the record, but which apparently included asking
complainant to give up various civil rights) constituted retaliation
for prior EEO activity and disability discrimination. The AJ evaluated
Complaint #2 at the same time the AJ decided Complaint #1. In the summary
judgment decision the AJ issued on January 30, 2001, the AJ concluded
that Complaint #2 should be dismissed for failure to state a claim.
The AJ reasoned that allegations of discrimination based on an agency's
refusal to settle do not state processable claims.
In its FAD issued on February 7, 2001, the agency adopted the AJ's
findings and conclusions wholesale, and ruled that the complaints at
issue were being closed with a finding of no discrimination.
ANALYSIS AND FINDINGS
Complainant is clearly frustrated with the adjudication of his complaints
thus far. In a statement he submitted in support of this appeal, he
notes that:
I filed this case(s) because the management of the facility where I am
employed has taken away my earned benefits and when I questioned such
action, then the [a]gency turns against me in the form of denials,
half-truths, assumptions, speculations, and outright false statements
. . . giving the appearance that they . . . have the right to do
whatever they please, to whomever they please, without the slightest
fear of retribution. I sought relief and help from the EEOC and have
not received such.
Complainant's Appeal Brief (Mar. 21, 2001), at 2.
Complainant apparently believes that the AJ's summary judgment decision
reveals the AJ's bias towards the agency and ignorance of the relevant
facts. He claims the AJ �quote[d] numerous cases that are designed to
prevent me from having my day in court,� erroneously failed to require
the agency to produce Forms 3971, and engaged in ex parte contacts
with agency representatives. Id. at 2-4. He therefore asks that we
overturn the FAD finding no discrimination, and that we order a full
hearing before a different administrative judge.
We acknowledge complainant's exasperation. And we have meticulously
reviewed his statements and the entire record before us in an attempt to
determine whether the AJ erred in issuing a decision without a hearing
� and/or whether complainant has indeed been the victim of any sort of
actionable federal employment discrimination. After doing so, we cannot
conclude that a hearing is necessary, or that any such discrimination
occurred in this case.
Let us begin with Complaint #1. We are charged with reviewing the AJ's
decision to grant summary judgment in favor of the agency completely anew.
See EEO Management Directive for C.F.R. 29 Part 1614 (rev. Nov. 9,
1999) (�EEO MD-110), at 9-16. This essentially means that we look at
the case with fresh eyes, and are free to accept or reject at will the
AJ's legal and factual conclusions (including the AJ's conclusion on
the ultimate fact of whether intentional discrimination occurred).
After analyzing all the evidence in the record and considering the
merits of this complaint, we believe that there were no material facts
(i.e., facts that would affect the outcome of the case under governing
law) in genuine dispute here. Thus, the AJ did not err in issuing a
decision without a hearing.<2> See 29 C.F.R. � 1614.109(g)(3); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Further,
even if we view all the record evidence in the light most favorable to
complainant, we still could not conclude that complainant has proven by
a preponderance of the evidence (as he must) that his age, disability, or
prior EEO activity had anything to do with the agency's requirement that
he use his annual and sick leave to get paid during his extended absence.
Therefore, the AJ's factual finding of no discrimination with respect
to Complaint #1 also was not erroneous (and the agency's decision to
fully implement it was not either).<3>
As for Complaint #2, concerning the alleged discriminatory settlement
agreement, it is true that �aggrieved employees� have standing to bring
a claim of federal employment discrimination if they believe their
agency/employer has discriminated against them on the basis of race,
color, national origin, sex, religion, disability (or in retaliation for
prior protected EEO activity). See, e.g., 29 C.F.R. �� 1614.103, 106(a).
However, this Commission's precedent has long held that an employee
is only �aggrieved� for these purposes if the employee has suffered a
present loss or harm with respect to a term, condition, or privilege of
his or her employment. See, e.g., Risner v. United States Postal Service,
EEOC Appeal No. 01997105 (Jan. 18, 2002) (citing Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994); and Fratini
v. United States Postal Service, EEOC Appeal No. 01992838 (Jan. 15, 2002).
We have stated in the past that the mere act of offering an employee a
settlement cannot render the offeree sufficiently �aggrieved� to enable
the offeree to state a separate claim of employment discrimination. See,
e.g., Stewart v. Department of Veterans Affairs, EEOC Appeal No. 01A05506
(June 26, 2001) (holding that �[a]s a matter of law, a settlement offer
does not give rise to a viable allegation� since �[s]uch offers do
not adversely affect a term, condition, or privilege of employment�);
see also Hegazy v. Department of Agriculture, EEOC Appeal No. 01993898
(Dec. 7, 2000) (citing Montague v. Department of the Army, EEOC Request
No. 05920321 (Sept. 16, 1997), and noting that �settlement negotiations,
including any statements and proposals made therein, are to be treated
as confidential and privileged in order to facilitate candid interchange
to settle disputes informally,� and �to allow [a complainant] to base
a new complaint on a settlement offer would defeat this purpose�).
Thus, under the law as we have interpreted it, complainant's complaint
based on the agency's settlement offer was properly dismissed by the AJ
for failure to state a colorable claim. Cf. 29 C.F.R. � 1614.107(a)(1)
(allowing agencies to dismiss a complaint if it fails to state a claim);
and 29 C.F.R. � 1614.109(b) (also empowering EEOC administrative judges
to dismiss a complaint for failure to state a claim). The agency's
decision to adopt this AJ ruling was also therefore appropriate.
CONCLUSION
The AJ and the agency adequately and appropriately summarized the relevant
facts and analyzed the applicable law. There was no genuine dispute
over any material fact related to Complaint #1, and complainant did not
prove that the use of his sick and annual leave (ostensibly without his
permission) equaled unlawful employment discrimination. Complaints #2 and
#3 failed to state a claim and were accordingly dismissed. Therefore,
we conclude that complainant was not entitled to a full hearing on the
merits of any of these complaints, and that the AJ's summary judgment
decision finding no discrimination � and the FAD fully implementing it
� should be affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 entitled
(�Right to File A Civil Action�).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 25, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Rehabilitation Act of 1973 was amended in 1992 to apply the standards
in the Americans with Disabilities Act to complaints of discrimination
by federal employees or applicants for employment.
2As AJ indicated, this complaint actually could have dismissed on
procedural grounds in any event. Individuals who believe they have
been discriminated against �must initiate contact with a[n] [agency
EEO] [c]ounselor within 45 days of the date of the matter alleged to be
discriminatory . . . .� 29 C.F.R. � 1614.105(a)(1). The �matter alleged
to be discriminatory� here was the agency's use of complainant's annual
and sick leave without his permission. This use began when complainant
went out on leave in January of 1995. Thus, complainant knew or should
have known about the agency's use of this leave sometime during that
month, and should have contacted an EEO counselor sometime in March of
1995 at the latest. Instead, complainant waited until December 31, 1997
to contact an EEO counselor � years longer than the 45 days required.
As a result, we could rule, as the AJ and the agency did, that Complaint
#1 was properly dismissed for complainant's failure to contact an EEO
counselor in a timely fashion. See, e.g., McGarry v. United States
Postal Service, EEOC Appeal No. 01A04784 (Oct. 16, 2001) (involving
a complainant's claim that the agency discriminated by forcing her
to use annual leave rather than leave without pay, and holding that
the relevant complaint was properly dismissed because the complainant
waited approximately two years after the annual leave was charged before
contacting an EEO counselor); and Jackson v. United States Postal Service,
EEOC Appeal No. 01A14957 (Jan. 15, 2002) (noting that we ordinarily expect
complainants to contact agency EEO counselors within 45 days of the date
on which they first have �reasonable suspicion� that discrimination has
occurred � even if at that point not all of the facts supporting a claim
of discrimination have yet surfaced).
But see Anisman v. Department of the Treasury, EEOC Request
No. 05A11283 (Apr. 12, 2001) (where we ruled that �because [a]
complainant . . . contacted an EEO Counselor within 45 calendar days
of an occurrence of [an] allegedly on-going discriminatory employment
practice, his EEO Counselor contact was timely as to that allegedly
unlawful employment practice, whether or not he suspected discrimination
more than 45-calendar days before his EEO Counselor contact.� It
is unclear from the record in the instant case, but it appears the
agency's use of complainant's annual and sick leave continued until his
workers' compensation claim was accepted in December of 1997. The last
deduction of such leave therefore could have occurred within 45 days
of the date complainant first sought EEO counseling for (what would
become) Complaint #1. Complainant has not explicitly asserted that the
agency's use of his leave constituted a �continuing violation� of the
type at issue in Anisman, however. And in any case, and as discussed
below, we do not rely solely on this �timeliness� issue to find that
the dismissal of Complaint #1 was proper.)
3In the AJ's ruling, the AJ also addressed another complaint filed by
complainant over the processing of Complaint #1. Complainant filed this
separate complaint (�Complaint #3�), alleging that agency officials
deceived complainant into thinking there was a hearing scheduled on
Complaint #1. Complainant claims he received a call asking him to
report for this �hearing� at 9:00 a.m. on June 6, 2000, and that when he
showed up, agency officials were the only ones present (i.e., the AJ was
not there). In ruling on Complaint #1 itself, the AJ found that this
related Complaint #3 should be dismissed for failure to state a claim
(since having to show up to a non-existent hearing, while admittedly
inconvenient, did not affect any term, condition, or privilege of
complainant's employment).
The validity of Complaint #3 as a stand-alone complaint has already
been addressed by this Commission in a separate appeal. See Hill
v. United States Postal Service, EEOC Appeal No. 01A10487 (Mar. 23,
2001), request for reconsideration denied, EEOC Request No. 05A10675
(Jul. 26, 2001). In this earlier decision, we ruled that this �spin-off�
complaint could properly be dismissed because it alleged dissatisfaction
with the processing of a previously filed complaint (Complaint #1).
Cf. 29 C.F.R. � 1614.107(a)(8). Because the AJ dealt with complainant's
�spin-off� allegation in ruling on Complaint #1 (a ruling released before
our earlier appellate decision on the same matter), and because we are
reviewing the AJ's entire summary judgment decision, we will address this
�spin-off� allegation again now. We agree with the AJ that Complaint
#3 concerning the allegedly fictitious hearing fails to state a claim
because it did not cause plaintiff to suffer any personal loss or harm
with respect to any term, condition, or privilege of complainant's
employment. Cf. 29 C.F.R. � 1614.107(a)(1); see also the discussion
of Complaint #2, below. We thus affirm the AJ's (and the agency's)
disposition of this issue, as well.