01a12673
03-08-2002
Kenneth L. Johnston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capitol-Metro Area), Agency.
Kenneth L. Johnston v. United States Postal Service
01A12673
3/8/02
.
Kenneth L. Johnston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capitol-Metro Area),
Agency.
Appeal No. 01A12673
Agency No. 4K-220-0121-99
Hearing No. 100-A0-8137X
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 Clerk at the agency's Springfield,
Virginia facility, filed a formal EEO complaint on November 10, 1999,
alleging that the agency had discriminated against him on the bases of
race (African-American) and sex (Male) when he was allegedly the only
person assigned to distribute parcel post as of July 20, 1999, and was
allegedly not provided assistance in performing that function.
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 concluded that complainant established a prima facie case of
race and sex discrimination because similarly situated employees, not
in complainant's protected class, were treated differently in that they
did not work as much parcel post duties as complainant. Furthermore,
the AJ found evidence that complainant was not always provided assistance
while working parcel post duties.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
Supervisor, Customer Services, assigned complainant parcel post duties
more often than other employees because complainant's regular work
assignment as an accountable clerk, consisted of only two or three hours
of work per day. Furthermore, the Supervisor averred that complainant
was assigned parcel post duties because he had complained about working
at the window and distribution cases. The Supervisor also stated that
complainant was provided assistance in performing parcel post duties
when the schedules of other employees permitted it.
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found
that complainant failed to respond to the agency's contention that
complainant was assigned more parcel post duties because other employees
had assignments that necessitated eight hours of work per day.
On March 5, 2001, the agency issued a final decision order that
implemented the AJ's decision. On appeal, complainant restates arguments
previously made before the AJ in a Motion to Compel. Specifically,
he contends that he should have been permitted to interview witnesses
by tape recording their statements, and argues that the agency failed
to respond to his discovery requests and adequately develop the record.
In response, the agency restates the position it took in its FAD, and
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. 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.
After a careful review of the record, we agree with the AJ that
complainant failed to present sufficient evidence that would establish
a genuine dispute of material facts existed. Despite complainant's
contention to the contrary, we find the record was adequately developed,
and agree with the AJ that the agency sufficiently responded to
complainant's discovery requests. Although depositions are an approved
discovery tool, the regulations do not provide for the interview of
witnesses in the manner described by complainant. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
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
3/8/02
Date