01A04652
04-05-2001
Juan R. Salaz, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Western Area), Agency.
Juan R. Salaz v. United States Postal Service
01A04652
April 5, 2001
.
Juan R. Salaz,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 01A04652
Agency No. 4E-870-0138-98
Hearing No. 350-99-8322X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the
complainant's appeal from the agency's final order in the above-entitled
matter. Complainant alleges he was discriminated against based on
his race (White) and national origin (Hispanic) when he was issued
a notice of removal on May 15, 1998. For the following reasons, the
Commission affirms the agency's final order, because the Administrative
Judge's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred.
BACKGROUND
The record reveals that complainant, a PS-05 Letter Carrier, at the
North Valley Carrier Annex, Albuquerque, New Mexico, filed a formal EEO
complaint on July 6, 1998, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant was provided 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, which the agency
adopted in its final order.
The record reveals, on May 5, 1998, the complainant and another employee,
(non-Hispanic), got into an argument concerning the delivery of priority
mail. Following the argument, complainant requested a leave slip from
his supervisor. Complainant's supervisor asked him to go into the office
of the acting Station Manager, so that they could discuss the situation.
When they entered the office, the acting Station Manager was talking
on the telephone. The record reveals that complainant then handed his
supervisor the leave slip and told her that he was going home. She told
complainant to sit down and talk to her but instead he walked away to
clock out. Complainant's supervisor then warned complainant that he
was violating a direct order and that was grounds for termination.
The complainant clocked out and went home. A notice of removal was
issued for insubordination. The acting Station Manager concurred with
the notice, as he had witnessed the exchange between complainant and
his supervisor.
The AJ found that complainant did not establish a prima facie case of
disparate discipline because even though he was a member of a protected
class, complainant had failed to establish the other elements of his
prima facie case, namely that others not of his protected group were
treated more favorably, i.e., that non-Hispanic employees who did not
follow a direct order were not disciplined or were disciplined less
harshly than the complainant. The AJ also found that complainant had
failed to demonstrate that he was meeting the legitimate expectations
of his employer at the time the notice of removal was issued. The AJ
found that complainant's failure to follow his supervisor's instruction,
violated the Standards of Conduct to which Postal Service employees were
expected to adhere.
On appeal, the agency requests that we affirm its final order.
Complainant did not submit a brief.
ANALYSIS AND FINDINGS
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In determining whether to
grant summary judgment, the trier of fact's function is not to weigh
the evidence and render a determination as to the truth of the matter,
but only to determine whether there exists a genuine factual dispute.
Id. at 248-49. The courts have been clear that summary judgment is not
to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766,
768 (1st Cir. 1975). The Commission has noted that when a party submits
an affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995). The hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
110, November 9, 1999, 6-1; see also 29 C.F.R. �� 1614.109(d) and (e).
"Truncation of this process, while material facts are still in dispute
and the credibility of witnesses is still ripe for challenge, improperly
deprives complainant of a full and fair investigation of her claims."
Mi S. Bang v. United States Postal Service, EEOC Appeal No. 01961575
(March 26, 1998).
Upon review, the Commission finds that no genuine issue of material fact
exists, in that there is no dispute that complainant failed to follow
a direct order. There is also no dispute that complainant violated the
Standards of Conduct for which termination was a possible punishment.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 5, 2001
__________________
Date