0120062762
11-20-2007
Fernando Correa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (NY Metro Area), Agency.
Fernando Correa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(NY Metro Area),
Agency.
Appeal No. 01200627621
Hearing No. 520-2006-00007X
Agency No. 1A111003805
DECISION
On March 20, 2006, complainant filed an appeal from the agency's March
3, 2006 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 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.
At the time of events giving rise to this complaint, complainant worked as
a Laborer Custodian at the Queens Processing and Distribution Center in
Flushing, New York. Complainant filed a formal EEO complaint on August
17, 2005, alleging that he was discriminated against on the bases of his
race (Hispanic), national origin (Ecuadorian), and age (D.O.B. 11/10/60)
when management issued him a Notice of Proposed Removal, dated April 27,
2005, which was later modified to a seven-day Suspension on July 14,
2005.
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. The AJ assigned to the case issued a decision
without a hearing on March 1, 2006, finding that complainant failed to
prove that he was subjected to discrimination as alleged.
The AJ found that, after viewing the evidence in a light most favorable
to complainant, a decision without a hearing was appropriate as there
were no genuine issues of material fact in dispute. The AJ found that
on March 31, 2005, complainant was involved in a verbal and physical
altercation with a co-worker (CW1). The AJ also found that as a result
of this incident, both complainant and CW1 were found to have violated
the agency's Zero Tolerance Policy and the agency's regulations as set
out in the Employee Labor Relations Manual. Further, both complainant
and CW1 were issued a Notice of Proposed Removal which was later reduced
to a seven-day suspension. The AJ concluded that complainant failed to
show that he was treated differently than CW1 or any other similarly
situated co-workers not in his protected classes. The agency's final
order adopted the AJ's finding of no discrimination.
On appeal, complainant contends that the AJ erred in issuing a decision
without a hearing. Complainant alleges that CW1 was the aggressor in
the March 31, 2005 altercation and because the physical attack by CW1
was unprovoked, management should not have found him in violation of
the Zero Tolerance Policy, nor should he have been issued discipline.
(Complainant's Brief on Appeal, March 15, 2006).
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. The record reflects that, despite complainant's
allegations that CW1 engaged in an unprovoked attack, a witness to
the March 31, 2005, incident provided affidavit testimony stating
that complainant and CW1 were "toe to toe" arguing and that he was
not able to tell who threw the first punch. (Report of Investigation,
Exhibit 15, 6). The record shows that it was this witness testimony
that the agency relied upon when conducting their investigation of the
incident that resulted in both complainant and CW1 receiving the same
discipline.2 We note that, a party opposing a decision without a hearing
may not rest upon mere allegations in the pleadings or upon conclusory
statements in affidavits; rather, he must go beyond the pleadings and
support his contentions with proper documentary evidence. Celotext, 477
U.S. at 324. Here, complainant has not provided any witness testimony or
other evidence to support his version of the events of March 31, 2005.
Accordingly, complainant has not shown that the management officials
responsible for issuing the disciplinary measures at issue were motivated
by discriminatory animus toward his race, national origin, or age.
We find that complainant has proffered no evidence to show that he was
treated more harshly than CW1. As such, we concur with the AJ's finding
that complainant failed to show that he was treated less favorably than
similarly situated employees, or that he was subjected to unlawful race,
national origin, or age discrimination. Therefore, we discern no basis
to disturb the AJ's decision and the agency's final order is affirmed.
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
November 20, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We also note that in addition to being issued the proposed removal as
a result of his actions on March 31, 2005, which was later reduced to
a suspension, CW1 was transferred to another facility.
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01A62762
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036