01a45873
12-16-2004
Jeffrey J. Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jeffrey J. Bailey v. United States Postal Service
01A45873
December 16, 2004
.
Jeffrey J. Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45873
Agency No. 1G-708-0008-03
Hearing No. 270-2004-00004X
DECISION
Complainant timely initiated an appeal from the agency's final action
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.
The record reveals that complainant, a Mail Processing Clerk at the
agency's Baton Rouge Processing & Distribution Center in Baton Rouge,
Louisiana, filed a formal EEO complaint on May 1, 2003, alleging
that the agency had discriminated against him on the bases of race
(African-American), sex (male), disability (stress/depression/anxiety)<1>,
and in reprisal for prior EEO activity when:
(1) on October 18, 2002, he did not receive his employee appreciation
as other employees had (he was awarded movie tickets, instead of a
duffle bag);
(2) on October 21, 2002, he was forced to work on automated machines
alone;
(3) on October 24, 2002, he was denied his properly scheduled negotiated
leave; and
(4) on October 26, 2002, he was not granted seven hours of leave
without pay (LWOP).
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 agency thereafter filed a Motion to
Dismiss or in the alternative, an Agency's Motion for Findings of Fact
and Conclusions of Law pursuant to 29 C.F.R. � 1614.109(g).
In its motion, the agency argued for the AJ to issue a decision
without a hearing in favor of the agency, finding no discrimination.
The agency further argued that complainant failed to establish a prima
facie case of race, sex, disability or reprisal discrimination. As to
complainant's disability claim, the agency argued that complainant
was not an individual with a disability, as he produced no evidence
that his conditions substantially impaired any major life activity.
The agency further argued that assuming complainant was an individual
with a disability, the record reveals that complainant did not provide
evidence reflecting that he requested a reasonable accommodation.
Regarding claim (1), the agency found that prior to his transfer to Tour
3, complainant had previously held a Mail Processing Clerk position on
Tour 2. The agency found that each Tour committee decided individually
how it would spend the award. The agency also found that complainant's
Tour 2 chose to purchase movie tickets while Tour 3 chose duffle bags.
The agency noted in his affidavit, the Supervisor Distribution Operations
(SDO) stated �the duffle bags were ordered for the employees on Tour 3
prior to [Complainant] being assigned to Tour 3. He was not included in
the original count; Tour 3 employees were counted and bags were ordered
for that number of employees.� The SDO further stated that complainant
filed a redress on the issue and that the parties came to an agreement
resolving complainant's redress that �he would receive the gift that was
given to the employees on Tour 2 for the same time frame, which was two
movie tickets.� Furthermore, the SDO stated that he delivered the two
movie tickets to complainant.
Regarding claim (2), the agency noted in his affidavit, the SDO stated
that the National Agreement states that management reserves the right
to direct the work force. The SDO further stated that the volume of
mail dictates the number of employees used to work on the DBCS at the
discretion of the supervisor, this applies to all automation employees,
and has been the practice for over 6 years.
Regarding claim (3), the agency noted in his affidavit, the SDO stated
that complainant was not denied negotiated leave because he �canceled
his negotiated leave by submitting a Form 3971.�
Regarding claim (4), the agency noted in his affidavit, the SDO stated
that on October 26, 2002, complainant was approved for seven hours
of LWOP under the Family Medical Leave Act. The SDO further stated
that complainant inadvertently received sick leave instead of LWOP.
The SDO stated that he offered to correct the problem in the presence
of a union steward, but that complainant �insisted that the seven hours
of sick leave be put back on his check without wages being deducted for
LWOP.� The SDO stated that complainant wanted to be paid seven hours
of sick leave without it being deducted from his sick leave balance.
The agency noted that complainant's request to be paid seven hours of
sick leave without it being deducted from his sick leave balance was
not denied because of discriminatory or retaliatory reasons.
On July 14, 2004, the AJ granted the agency's motion to dismiss.
The AJ determined that the agency properly set forth the undisputed
facts and applicable law in its "Agency's Motion for Findings of Fact
and Conclusions of Law Pursuant to 29 C.F.R. � 1614.109(g)," incorporated
the Motion in his decision, and found no discrimination. The AJ further
concluded that complainant failed to establish a prima facie case of
race, sex, disability and reprisal discrimination. Moreover, the AJ
found that regarding claims (1) and (2), complainant did not allege
facts supporting a finding that he suffered a tangible, present harm
due to the agency actions. The AJ further found that complainant did
not show how receiving movie tickets instead of a duffle bag has harmed
him or how he was harmed by not being permitted to work in tandem with
other employees on postal equipment.
Regarding claims (3) and (4), the AJ found that the agency articulated
legitimate, non-discriminatory reasons for its actions. Regarding claim
(3), the AJ noted that the agency asserted that complainant cancelled his
leave request, and that this assertion was undisputed by complainant.
Regarding claim (4), the AJ noted that the agency asserted that its
actions constituted honest error which it offered to correct, but that
complainant refused this offer; and that complainant similarly does not
dispute this assertion.
The AJ also found that complainant did not show that the agency's stated
rationales regarding claims (3) and (4) were pretextual.
The agency's final action implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when he granted the
agency's motion for summary judgment. Complainant further states that
when the agency filed its motion on February 11, 2004, his representative
was hospitalized and was unable to respond to the motion. Complainant
states that since his representative's death on February 27, 2004, he
is now represented by a new representative. Furthermore, complainant
states �due to the extenuating circumstances surrounding the death of
his original representative that the Administrative Judge should have
been more lenient and in fairness to all parties conducted a hearing on
his complaint because there were genuine material facts in dispute or
a hearing would not have been scheduled in the first place.�
In response, the agency argues that even if his representative was in the
hospital during the relevant period, complainant had two other designated
representatives who could have timely responded or asked for an extension
of time due to the circumstances. The agency further argues that on
November 6, 2003, complainant's original representative submitted a
designation form indicated that complainant had three representatives and
he is currently being represented by one of the designated representative.
Furthermore, the agency argues that complainant is �using the appellate
forum to reply� to its motion.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
Upon review, the Commission determines that in regard to claims (1)
and (2), the AJ properly determined that these claims do not support
a determination that complainant suffered a present harm. Moreover,
regarding claims (3) and (4), the Commission determines that the agency
articulated legitimate, non-discriminatory reasons for its employment
actions, and that complainant did not establish that these reasons were a
pretext for discrimination. Regarding claim (3), the agency determined
that complainant was not denied his properly scheduled negotiated leave
because he withdrew his requested leave after submitting a Form 3971.
Regarding claim (4), the agency determined that a clerical error was
made when complainant was charged seven hours of sick leave instead of
the approved seven hours of LWOP.
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 find that the AJ's decision properly summarized the
relevant facts and 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.
Accordingly, the agency's final action implementing the AJ's decision
finding no discrimination was proper and 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
December 16, 2004
__________________
Date
1For purposes of analysis we presume, without
finding, that complainant is an individual with a disability.