01a54643
10-06-2005
John W. Moon, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
John W. Moon, Jr. v. United States Postal Service
01A54643
October 6, 2005
.
John W. Moon, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A54643
Agency No. 4C-290-0043-04
Hearing No. 140-2005-00077X
DECISION
Complainant timely initiated an 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a Mail Processing Clerk, PS-05,
at the Greer Post Office, located in Greer, South Carolina, filed
a formal EEO complaint on April 14, 2004, alleging that the agency
discriminated against him on the bases of race (Caucasian), sex (male),
and age (D.O.B. 1/4/50) when from January 2004 through March 2004, he was
denied 204-B acting supervisor (204-B) opportunities at the Greenville
Processing and Distribution facility.
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 adopted the agency's facts and applicable law as
set forth in its Motion for Summary Judgment. The AJ summarily concluded
that complainant failed to show by a preponderance of the evidence, that
he was a victim of discrimination. In its Motion the agency concluded
that complainant failed to establish a prima facie case of race, sex
or age discrimination. Specifically, the agency found that complainant
did not suffer an adverse employment action, and he failed to identify
any similarly situated employees outside of his protected classes who
were treated more favorably. The agency also found that complainant
continues to work in his regular job, did not lose any pay and he was
not suspended or removed from his job. The agency further found that
even assuming arguendo that complainant established a prima facie case of
discrimination, management had articulated legitimate, nondiscriminatory
reasons for its actions that complainant failed to rebut. Specifically,
the agency found that since the agency had a sufficient numbers of
204-B already working at the Greenville facility, there was no reason to
bring in additional 204-B from outside the facility. The agency also
found that management has always considered employees working at the
facility prior to considering employees in Customer Service division or
considering outside applicants as complainant.
On appeal, complainant contends that the AJ erred in issuing a decision
without a hearing and asks the Commission to remand the matter for
a hearing.
The Commission's review of a decision without a hearing is de novo,
meaning that it is done without regard to the legal or factual conclusions
of the previous decision maker. EEOC Management Directive 110, Chapter 9
(Section VI) (Revised 1999). 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 only 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, the issuance of a decision without a hearing
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
upon a determination that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003).
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. In
reaching this conclusion, we note that complainant did not rebut that
at the time that he requested a 204-B opportunity, there was no position
available at the Greenville facility. 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. We conclude
that complainant has not �set forth specific facts showing that there
is a genuine issue for a trial.� Fed. R. Civ. P. 56(e). Therefore,
for the foregoing reasons, we AFFIRM the agency's final order adopting
the AJ's finding of no discrimination.
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
October 6, 2005
__________________
Date