0120071990
06-29-2007
Douglas S. Marshall, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Douglas S. Marshall,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071990
Hearing No. 510-2006-00068X
Agency No. 4A006009605
DECISION
On March 13, 2007, complainant filed an appeal from the agency's February
13, 2007, 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 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 affirms the agency's final order.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of race (African-American) and disability
(left knee) when, on September 1, 2005, he received a letter from the
former Manager of Human Services informing him that his Department of
Labor case was closed and that his permanent job offer was not valid in
Puerto Rico.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a part-time flexible (PTF) carrier at the Guayanilla Post Office in
Guayanilla, Puerto Rico. On November 23, 2005, he filed an EEO complaint
on the basis stated above. At the conclusion of the investigation,
complainant was provided with a copy of the report of investigation and
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing. After both parties
submitted motions for a decision without a hearing, the AJ assigned
to the case issued a decision without a hearing on February 5, 2007.
Therein, she found no discrimination.
The AJ made the following findings of fact: While working at the
Detroit Post Office in Detroit, Michigan, complainant sustained a knee
injury while performing duties as a full-time carrier in May 1995.
Complainant received Office of Workers' Compensation (OWCP) benefits
from March 5, 1999 through July 24, 1999. Thereafter, he accepted a
modified job as a City Carrier Technician in the Detroit Post Office,
which comported with his medical restrictions. Complainant then applied
for a voluntary transfer from Detroit to Guayanilla, Puerto Rico for
a PTF carrier position, and the agency reassigned him to the position,
effective November 27, 2004. Initially, the agency paid complainant for
40 hours a week although he was working 10 hours a week. In August 2005,
however, the Human Resources Office recognized that an error occurred in
calculating the hours complainant was entitled to be paid in Puerto Rico.
Specifically, under agency policy, a full-time employee loses the 40 hour
work week guarantee when he transfers to a PTF position. On October 5,
2005, the agency offered complainant a modified job offer reflecting his
PTF position in Puerto Rico. Complainant accepted that position.
The OWCP denied complainant's claim for benefits for up to 40 hours a
week because complainant held a PTF position in Puerto Rico. Although
complainant again requested OWCP's assistance, on April 5, 2006, OWCP
denied complainant's request because his wage loss was a result of his
voluntary transfer to Puerto Rico, rather than attributable to his knee
injury.
The AJ adopted the agency's motion for a decision without a hearing in
its entirety. She further specifically found that the complaint arose
out of complainant's confusion as to the policies that govern transfers,
modified job offers, and OWCP regulations. She noted that, although
complainant was unaware of the effect his voluntary transfer would have
on his work related disability, no evidence existed that complainant was
misled, or that other employees were treated differently. She concluded
that complainant failed to prove by a preponderance of the evidence that
the agency discriminated against him.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. Complainant filed the subject appeal. In his statement
on appeal, complainant contends that the agency has obstructed his
OWCP claim, and is required to provide him work for 8 hours a day.
He further asserts that he is a permanent modified letter carrier with
a Loss Wage Earning Capacity decision, and the agency should treat
him accordingly.
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. 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").
We must first 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
After a careful review of the record, the Commission finds that the AJ's
decision referenced the appropriate regulations, policies, and laws.
Moreover, we find that the AJ properly issued a decision without a
hearing because complainant has failed to show that a genuine issue of
material fact exists. On appeal, complainant contends that the agency
has obstructed his OWCP claim, and is required to provide him work for
8 hours a day. However, the Commission finds that the agency is acting
consistent with its regulations, and nothing in the record reveals
abnormalities or discriminatory animus on the part of the agency in
processing the OWCP claim. Moreover, complainant asserts that he is
a permanent modified letter carrier with a Loss Wage Earning Capacity
decision. However, the record reveals that, once complainant transferred
from a full-time position in a Detroit facility to a part-time position
in a Puerto Rico facility, his position had to be re-evaluated, and the
OWCP found that his wage loss was a result of his voluntary transfer.
We note that the proper forum for complainant to raise challenges to
actions which occur during the OWCP process is in that process itself.
Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,
1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). For the foregoing reason,
we concur with the AJ's determination and find that a decision without
a hearing was appropriately rendered in the subject case.
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.
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
____06/29/07______________
Date
2
0120071990
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071990