01a43773
04-11-2005
George M. Robertson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
George M. Robertson v. United States Postal Service
01A43773
April 11, 2005
.
George M. Robertson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43773
Agency No. 1K-231-0091-02
Hearing No. 120-2003-00396X
DECISION
Complainant initiated an appeal from the agency's final order concerning
his equal employment opportunity (EEO) complaint of unlawful employment
discrimination. For the following reasons, the Commission AFFIRMS the
agency's final order.
The record reveals that complainant, a Mail Handler at the agency's
Processing and Distribution Center, Richmond, Virginia facility, filed
a formal EEO complaint on May 31, 2002, alleging that the agency had
discriminated against him on the bases of race (African-American), sex
(male), and reprisal for prior EEO activity when:
(1) On February 28, 2002, complainant observed a supervisor, (S1)
grabbing, intimately touching, and hugging a Black female employee;
On March 30, 2002, S1 removed complainant from an Elevator 7 assignment
before all of the dispatches were completed;
On an unspecified date, S1 held private meetings with two female
employees where they were given false information;
A Supervisor, S2, stated that if a female did not have a problem with a
supervisor touching and hugging her, then �we should not have a problem
with it;�
On May 21, 2002, S1 accused complainant of reading a newspaper on
the job.
By letter to complainant dated July 2, 2002, the agency accepted claims
(1), (2), and (4) for investigation. The agency dismissed claims (3) and
(5) for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant does not, on appeal, address the agency's dismissal of claims
(3) and (5), and we find these claims are properly dismissed.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ concluded that complainant failed to
establish any evidence of sexual favoritism or coercion, and failed to
show that the agency's actions were motivated by discriminatory animus
based on complainant's race, sex, or reprisal. The agency's final order
implemented the AJ's decision.
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, 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 careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We observe that complainant stated in his deposition
that as soon as he complained of S1's alleged hugging or touching of
female employees, complainant never observed any further instances of
inappropriate touching by S1. Further, complainant concedes in his
deposition that he is not assigned exclusively to Elevator 7, and does
not rebut the agency's position that he was, at the time described in
his complaint, on overtime and that management properly reassigned
him for operational considerations. We note that the AJ's decision
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes, or in reprisal for complainant's EEO activity.
We therefore AFFIRM the agency's final order dismissing claims (3) and
(5) and finding no discrimination regarding claims (1), (2) and (4).
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
April 11, 2005
__________________
Date