John E. Luckey, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 10, 2005
01a42770 (E.E.O.C. Mar. 10, 2005)

01a42770

03-10-2005

John E. Luckey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John E. Luckey v. United States Postal Service

01A42770

March 10, 2005

.

John E. Luckey,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A42770

Agency Nos. 4G-770-0492-02, 4G-770-0063-03

Hearing No. 330-2004-00003X

DECISION

Complainant filed this appeal with the Commission from the March 1,

2004 agency decision implementing the February 24, 2004 decision of the

EEOC Administrative Judge (AJ) which found no discrimination in Agency

No. 4G-770-0063-03 and which dismissed Agency No. 4G-770-0492-02 for

failure to contact an EEO Counselor in a timely manner pursuant to 29

C.F.R. � 1614.107(a)(2).

Complainant filed two complaints which were consolidated by the AJ.

In Agency No. 4G-770-0492-02, complainant alleged that he was

discriminated against on the bases of race (Caucasian), sex (male),

and age (D.O.B. January 7, 1945) when his request for a special

route inspection was denied and when he returned from vacation on

August 16, 2002, he learned that three routes had been cut. In Agency

No. 4G-770-0063-03, complainant alleged that he was discriminated against

on the bases of race (Caucasian), sex (male), age (D.O.B. January 7,

1945), and reprisal when: (1) on or about October 3, 2002, complainant's

request for overtime was denied and complainant was subjected to

harassment because his overtime requests were either denied or reduced

and other carriers were instructed to "PM case" complainant's route but

not other routes; and (2) on October 15, 2002, complainant's supervisor

came out on complainant's route and harassed complainant on several

occasions and changed complainant's reporting time.

At the conclusion of the investigation, complainant received a copy of

the investigative report and requested a hearing before an AJ. The AJ

issued a decision without a hearing (summary judgment).

Agency No. 4G-770-0492-02

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO Counselor

within forty-five (45) days of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within forty-five

(45) days of the effective date of the action. The Commission has

adopted a "reasonable suspicion" standard (as opposed to a "supportive

facts" standard) to determine when the forty-five (45) day limitation

period is triggered. See Ball v. United States Postal Service, EEOC

Request No. 05880247 (July 6, 1988). Thus, the limitations period is

not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent. EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides

that an agency shall dismiss a complaint that fails to comply with the

applicable time limits contained in � 1614.105.

Regarding Agency No. 4G-770-0492-02, the AJ noted that during a prehearing

conference on February 3, 2004, she had notified the parties that the

complaint was being dismissed on untimeliness grounds. In the decision,

the AJ noted that in his informal complaint, complainant alleged that

the discrimination occurred on May 16, 2002, and that complainant did

not initiate contact with an EEO Counselor until July 25, 2002. The AJ

also noted that while complainant later alleged that the discrimination

occurred on August 16, 2002, the August 16, 2002 date would have occurred

after the July 25, 2002 contact. The AJ also stated that because the

claim was untimely, she would not address the issue of whether or not

discrimination occurred in Agency No. 4G-770-0492-02 .

The EEO Counselor's Report reveals that complainant contacted an EEO

Counselor on July 25, 2002. Complainant's September 21, 2002 complaint

in Agency No. 4G-770-0492-02 reflects that he alleged that he was

discriminated against on May 16, 2002, when his request for the special

route inspection was denied and that when he returned from vacation, he

discovered that three other routes were cut and that his route was not

inspected, adjusted or counted. Although complainant later asserted that

the denial of the route inspection occurred in August 2002, he admitted

in a deposition on December 18, 2003, that the date of incident regarding

the route inspection was May 16, 2002. Therefore, the Commission finds

that the correct incident date is May 16, 2002.

The Commission finds that complainant did not initiate EEO Counselor

contact until July 25, 2002, for alleged discrimination which occurred

on May 16, 2002. The Commission finds that complainant should have

reasonably suspected discrimination on May 16, 2002. We find therefore

that the contact was untimely because it was beyond the 45 days required

for timely EEO Counselor contact and complainant has not provided adequate

justification to extend the time limitation period. Accordingly, the

dismissal of Agency No. 4G-770-0492-02 was proper pursuant to 29 C.F.R. �

1614.107(a)(2).

Agency No. 4G-770-0063-03

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. See 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.

In Agency No. 4G-770-0063-03, the AJ concluded that even assuming

that complainant had established a prima facie case of discrimination,

complainant had failed to show that the agency's reasons for denying his

auxiliary/overtime requests, authorizing "PM casing" of his route, and

observing complainant on his route were mere pretext for discrimination.

The AJ found that complainant was observed on numerous occasions on the

street not following procedures and that complainant's volume of mail

did not justify overtime. The AJ also found that complainant's route

was "PM cased" because of excessive volume and that management had the

authority to instruct carriers to "PM case" routes with excessive volume.

After a careful review of the record, the Commission finds that grant

of summary judgment in Agency No. 4G-770-0063-03 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. The Commission notes also that the

record reveals that complainant's requests for overtime were denied

because of his poor performance, that complainant was observed on his

route because of repeated requests for overtime, and complainant's route

was "PM cased" to prevent delay in mail delivery.

The agency's decision dismissing Agency No. 4G-770-0492-02 and finding

no discrimination in 4G-770-0063-03 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

March 10, 2005

__________________

Date