01a60698
04-06-2006
James M. Bennett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James M. Bennett v. United States Postal Service
01A60698
April 6, 2006
.
James M. Bennett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60698
Agency Nos. 4F-926-0177-02, 4F-926-0154-03
Hearing Nos. 340-2003-03407X, 370-2004-00120X
DECISION
Complainant filed an appeal from the agency's final action dated September
27, 2005, finding no discrimination with regard to his complaints. In his
complaint filed on October 2, 2002, and April 17, 2003, complainant,
a Part-Time-Regular Laborer Custodian, alleged discrimination based
on race (Caucasian), sex (male), age (DOB: 8/10/49), disability (back)
and in reprisal for prior EEO activity when:
A Freedom of Information Act (FOIA) request was not provided;
(2) His Office of Workers' Compensation Program (OWCP) claim was
delayed when he was forced to participate in a District Reasonable
Accommodation Committee (DRAC) meeting;
(3) He was not reimbursed for travel time and mileage when he attended
the meeting;
(4) He was not allowed to fully participate at the DRAC;
(5) The date of the DRAC meeting was not changed to allow his
representative to be present;
(6) His former Postmaster explained to the Injury Compensation
Specialist that complainant's coworkers �joked� about complainant always
being on �light duty;�
(7) He attended a work site review but was not allowed to have his
choice of representation;
(8) He wrote letters to the Acting Injury Compensation Manager
regarding his return to duty and requesting assignment to which he
received no reply;
(9) He became aware that an identified responsible official in a
prior EEO complaint was designated as the contact person for the Post
Office; and
(10) He was denied reassignment to a Video Activating System position
and a change from a Part-Time Regular status to Full-Time Regular status.
Following the completion of the investigation of the complaints,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On August 12, 2005, the AJ issued a decision without holding a hearing,
finding no discrimination. The agency's final action 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.
The Commission finds that the grant of summary judgment was appropriate
in the instant case as no genuine dispute of material fact exists.
With regard to claims (1) and (2), the AJ found, and the Commission also
agrees, that the alleged FOIA request denial and the alleged delay in
complainant's OWCP claim were beyond the jurisdiction of the Commission.
Therefore, we find that claims (1) and (2) are properly dismissed for
failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
With regard to claim (6), the agency stated that it did not refer to
complainant as a �joke.� When the Acting Manager of Injury Compensation
asked complainant's Postmaster whether or not other employees would be
willing to assist complainant with his duties, the Postmaster conveyed to
the Acting Manager the opinion of his coworkers. The AJ also indicated
that this incident does not rise to the level of an adverse action.
The Commission finds that complainant was not aggrieved by the incident
in claim (6) and that this claim is properly dismissed for failure to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
With regard to claim (9), the AJ stated that this incident did not rise
to the level of an adverse action. The Commission finds that complainant
was not aggrieved by the incident in claim (9) and that claim (9) is
properly dismissed for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1).
With regard to claim (3), the agency stated that complainant was not
eligible to be reimbursed for travel time and mileage because he was not
in pay status during the meeting, as it was held outside of his schedule
and because he was not forced to attend the meeting. With regard to
claim (4), the agency stated that at the DRAC meeting in question, the
parties engaged in the interactive process where complainant discussed
how his condition affected his home and work life. With regard to claim
(5), the agency stated that the interactive process did not require the
participation of complainant's attorney and/or representative.
With regard to claim (7), during the interactive process in question,
the agency scheduled work-site reviews to determine complainant's regular
and customary duties. The agency stated that complainant was not allowed
to have his personal friend participate who was not affiliated with
the union. The agency indicated that the interactive process did not
require the participation of complainant's attorney and/or representative.
Regarding claim (8), the agency contends that it did reply to
complainant's requests to return to duty. The record shows that by
letter dated April 18, 2003, the agency decided to place complainant in
�the private sector.� The agency stated that this decision was �made
in concert with the Department of Labor.� Complainant has not claimed
that this assignment was outside of any of his medical restrictions.
With regard to claim (10), the agency stated that complainant was
employed as a 16-hour per week custodian, and not a full-time employee.
The position in question was a full-time 40-hour per week assignment
that required daily sitting for an 8-hour period. Complainant's medical
limitations were sitting 6 hours per day. The agency also stated that
the position was not a fully funded vacant position. It is noted that
complainant does not proffer any evidence that he could actually perform
the duties of this full-time position.
In sum, we find that claims (1), (2), (6), and (9), are properly
dismissed for failure to state a claim. Regarding claims (3) - (5),
(7), (8), and (10), we find that the agency articulated legitimate,
non-discriminatory reasons for the alleged actions. The Commission also
finds that complainant failed to provide any evidence that the articulated
reasons were pretextual or that any agency action was motivated by
discrimination.<1> Accordingly, the agency's final action 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
April 6, 2006
__________________
Date
1The Commission does not address in this decision whether complainant
is a qualified individual with a disability. To the extent
that complainant may be alleging that he was denied a reasonable
accommodation, we find that complainant has not shown that he was
denied a reasonable accommodation. There is no indication that he
was required to work beyond his medical restrictions.