01A21288
01-09-2003
Gregory Schmidt v. United States Postal Service
01A21288
January 9, 2003
.
Gregory Schmidt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21288
Agency No. 4E-852-0034-00
Hearing No. 350-A0-8308X
DECISION
Complainant timely initiated this appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29
C.F.R. � 1614.405.
At all times relevant to the agency actions at issue, complainant was
employed as a City Letter Carrier at the Sierra Adobe Station in Phoenix,
Arizona. Complainant alleges in his complaint that he was subjected
to unlawful discrimination on the bases of his race (Caucasian), color
(White), sex, and disability (6'5� in height) when (1) on November 8,
1999, he was placed in an off duty status, and (2) on November 26, 1999,
he was issued a Notice of Removal. At the conclusion of the agency's
investigation into the complaint, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued notice to the parties that he was considering
issuing a decision without first holding a hearing, and requested that
the parties identify any factual and/or credibility issues in dispute.
After receiving the parties' responses to this notice, the AJ issued a
decision without a hearing, finding no discrimination.
In his decision, the AJ first found that the matter was appropriate for
disposition without a hearing, as there existed no genuine issue as to
any material fact. Turning to the merits of the complaint, the AJ found
that the agency had articulated legitimate, nondiscriminatory reasons
for its actions, as it had provided testimonial and documentary evidence
that complainant was placed in an off duty status because the agency had
received a report that he had threatened a coworker with bodily harm, and
that he was issued a Notice of Removal because of his violation of the
agency's policy regarding threats and conduct in the workplace. The AJ
further found that complainant failed to present evidence which showed
that these articulated reasons were pretextual, noting that there was no
evidence that the agency did not receive the reports about complainant's
conduct upon which it claimed to have based its disciplinary actions.
The AJ also found that complainant failed to establish that he was
an individual with a disability for purposes of coverage under the
Rehabilitation Act, as he failed to present any evidence as to how
his size caused a substantial impairment in any major life activity,
or that the had a record of such an impairment, or that he was regarded
as so impaired. See 29 C.F.R. � 1630.2(g) (defining �individual with a
disability� for purposes of the Rehabilitation Act as an individual who:
(1) has a physical or mental impairment that substantially limits one
or more major life activities; (2) has a record of such impairment; or
(3) is regarded as having such an impairment). The agency subsequently
issued its final order, which fully implemented the AJ's decision,
and this appeal followed.
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 United States 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 Corp. 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 the AJ's
grant of summary judgment was appropriate, as there exists no genuine
issue as to any fact material to complainant's claims. Complainant
contended below that a genuine dispute does exist as to a material fact,
as he asserts that he did not instigate the workplace altercation which
resulted in his being disciplined, and because the other individual
involved in the altercation was not similarly disciplined. However, even
assuming for the sake of this appeal that complainant had established
that he was at all relevant times an individual with a disability, and
examining all evidence of record in a light most favorable to him, he has
still failed to provide or identify any evidence which is in conflict with
the agency's evidence in support of its assertion that its disciplinary
actions were initiated on the basis of the reports it received regarding
complainant's conduct in the workplace. Nor is there any evidence in the
record which would indicate that any of the complained-of agency actions
were in any way based upon an unlawful discriminatory animus against
complainant's race, color, sex, or disability status. Accordingly,
we agree with the AJ that there exists no genuine issue as to any fact
material to the complaint, and that the issuance of a decision without
a hearing was appropriate in this matter.
Therefore, after a thorough examination of the record on appeal, it is
the decision of the Commission to 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
January 9, 2003
Date