01a44468
11-24-2004
Jonathan McFarlane, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jonathan McFarlane v. United States Postal Service
01A44468
November 24, 2004
.
Jonathan McFarlane,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44468
Agency No. 4A-110-0068-02
Hearing No. 160-2003-08554X
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. 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 Mark-up Clerk at the agency's
Processing and Distribution Center, in Brooklyn, New York, filed a formal
EEO complaint on July 14, 2002, alleging that the agency had discriminated
against him on the basis of reprisal for prior EEO activity when he was
issued two seven day suspensions.
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 agency's final order implemented the
AJ's decision. Complainant makes no new contentions on appeal, and the
agency requests that we affirm its final order.
The AJ noted that there was evidence that complainant's supervisors were
aware of his prior EEO activity. The AJ found that there was no evidence
of any causal connection between the EEO activity and the adverse actions.
The AJ noted that, with respect to the initial suspension on February 15,
2002, complainant did not deny that he stepped away from his assignment
nor did he deny making a threatening remark to one of his supervisors
(S1). Further, the AJ found that, while complainant asserted that another
employee was present during the incident, he offered no statement from
the employee to support his claim that S1 had fabricated the evidence
upon which the suspension was based.
With respect to the second suspension on June 28, 2002, the AJ found that
complainant failed to contest the second supervisor's (S2) assertion
that he had made the disrespectful remark that formed the basis of his
discipline. Further, the AJ noted that there was no evidence that S2
had not disciplined other employees for similar disrespectful conduct.
The AJ concluded that complainant has introduced no evidence that would
lead a trier of fact to conclude that he was retaliated against when
the agency issued him the two suspensions.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
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 in dispute. 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. Chelates v. Citrate, 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,
a hearing is required. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
after determining that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEC Appeal
No. 01A24206 (July 11, 2003).
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when, as here, the agency has
articulated legitimate, nondiscriminatory reasons for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated
by a preponderance of the evidence that the agency's reasons for its
actions merely were a pretext for discrimination. Id.; see also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983). In this matter, S1 stated that complainant was issued his first
suspension because he walked away from his work and made a threatening
remark to S1. In his affidavit, complainant did not dispute that he
walked off the job nor did he dispute making a threatening remark to S1.
With respect to the second suspension, S2 articulated a legitimate
nondiscriminatory reason for her action. She stated that complainant
was suspended for making a disrespectful remark. In his affidavit,
complainant did not dispute making the remark. Upon review of the matter,
we find that complainant failed to present any persuasive evidence from
which a reasonable fact-finder could conclude that the agency's proffered
legitimate, non-discriminatory reasons were pretext for reprisal.
Therefore, we conclude that the AJ properly found no discrimination.
Consequently, after a careful review of the record, the Commission finds
that the issuance of a decision without a hearing 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 find that complainant failed to present
evidence that any of the agency's actions were motivated by reprisal for
his prior protected activity. The agency's final order is hereby 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
__________________
Date