01a55912
02-28-2006
Kenneth B. Wills, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth B. Wills v. United States Postal Service
01A55912
February 28, 2006
.
Kenneth B. Wills,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55912
Agency Nos. 1H-321-0106-03, 1H-321-0022-04
Hearing No. 150-2005-0246X
DECISION
Complainant filed an appeal from the agency's final action dated
August 1, 2005, finding no discrimination with regard to his complaints.
The record indicates that complainant, a Mail Processing Machine Operator
at the agency's Tallahassee Processing and Distribution Facility, filed
his complaints on November 19, 2003 and January 20, 2004, alleging
discrimination based on race (Black), sex (male), and disability when:
(1) on August 30, 2003, he was required to work on his holiday; (2)
on September 9, 2003, he was required to work two machines at the same
time; (3) on September 14, 2003, he was denied forklift training; (4) on
September 15-18, 2003, he was denied overtime; (5) on September 18, 2003,
he was issued a 7-day suspension for unsatisfactory attendance; and (6)
on January 20 and 21, 2004, he was required to work in unsafe conditions.
Following the completion of the investigation of the complaints,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On July 1, 2005, the AJ issued a decision without holding a hearing,
finding no discrimination. The agency's final action implemented the
AJ's decision.
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, 322-23 (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.
Upon review, the Commission finds that the grant of summary judgment was
appropriate, as no genuine dispute of material fact exists. Specifically,
with regard to claim (1), the agency stated that complainant was required
to work on the holiday because his managers determined that his services
were needed on that occasion to meet the needs of the mail service.
The agency indicated that an employee, identified by complainant, was
not required to work on that holiday because she was on annual leave.
With regard to claim (2), complainant claimed that on September 9, 2003,
an identified acting supervisor required him to work two machines at the
same time. The acting supervisor stated that she was not complainant's
acting supervisor on September 9, 2003, but was so on September 6, 2003
(Saturday). She further stated that she did not ask complainant, or
anyone else, to operate two machines at the same time on September 6,
2003, or on any other day.
With regard to claim (3), the agency stated that complainant was not
provided fork lift training because his managers determined that his job,
Advanced Facer Concealer and Micro Mark Operator, did not require those
skills, and if any it would be minimal. The managers indicated that the
decision to deny complainant forklift training was a consensus among all
of the Tour 3 supervisors, and other employees in the same position as
complainant had not received the same training either.
With regard to claim (4), his supervisor indicated that complainant was
denied his requested overtime during the period in question because
his services were not needed to meet the needs of the mail service.
Specifically, the supervisor stated that other employees on the overtime
desired list were available, and complainant did not sign up for the
overtime desired list for the week in question. Complainant did not
dispute the agency's arguments.
With regard to claim (5), the agency stated that complainant was given the
suspension because he failed to follow specific written instructions that
he had been given concerning his obligation to call in when he was going
to be absent from work, and concerning his obligation to provide certain
documentation to support any request for sick leave. Complainant had
been given these instructions because he had been placed in a restricted
sick leave status because of his unsatisfactory attendance.
With regard to claim (6), the agency stated that during the relevant
incident dates, complainant returned to work after being absent for
several days, and discovered that an emergency stop button on a canceling
machine was not working properly. Specifically, the agency indicated
that during complainant's absence from work, the mail canceling system at
work had been malfunctioning. As a result of this emergency situation,
the managers installed safeguards to protect the employees and proceeded
to process the mail for delivery. This action was necessary in order
to accommodate the needs of the mail service, and at the same time,
to provide safe working conditions for the employees. The managers
conducted a safety talk in which the emergency procedures were explained
to the employees, but complainant did not attend such talk because he
was absent from work on that day.
After a review of the record, the Commission finds that the agency
articulated legitimate, non-discriminatory reasons for the alleged
actions. The Commission also finds that complainant failed to provide
any evidence that the articulated reasons were pretextual or that any
agency action was motivated by discrimination.<1>
The agency's final action 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
February 28, 2006
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.