0120070882
09-25-2007
Larry C. Holland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.
Larry C. Holland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal No. 0120070882
Agency No. 4F926021903
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 1, 2006 final action concerning
his equal employment opportunity (EEO) complaint alleging 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. Complainant alleged
that the agency retaliated against him for engaging in protected EEO
activity when:
1. he was placed on emergency off-duty status on May 14, 2003;
2. he was charged with annual leave on May 19 to June 1, 2003;
3. he was required to present a doctor's note to support his sick leave
request;
4. he was required to attend training for window clerk duties;
5. he was denied a temporary change of schedule;
6. he was not given copies of his leave request forms;
7. he was denied a request for assistance of a shop steward before
attending a meeting; and
8. he was issued a letter of warning for irregular attendance.
The agency conducted an investigation of the complaint and the matter was
submitted to an EEOC Administrative Judge (AJ). The agency submitted
a Motion for a Decision Without a Hearing which complainant opposed.
The AJ determined that there were no material facts in dispute which
would warrant a hearing and as a result, she issued a decision without
a hearing finding no discrimination. More specifically, she found that
complainant submitted no supporting documentary or testimonial evidence
that the agency's actions were motivated by retaliation. Additionally,
the AJ found that complainant's dispute centered around interpretations
of the Collective Bargaining Agreement which were not evidence of a
retaliatory motive. Finally, the AJ found that the agency presented
legitimate reasons for its actions which complainant failed to challenge
as a pretext for retaliation.
After a review of the record, the Commission concludes that the AJ was
correct to issue a decision without holding a hearing because there were
no disputes of material fact to be resolved. 29 C.F.R. � 1614.109(g);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).1 Even when
viewing the evidence in the light most favorable to complainant, he did
not dispute the agency's explanations for its actions. For instance,
complainant did not dispute that two co-workers complained about his
threatening behavior which led the agency to place him on emergency
off-duty status. Complainant also did not challenge the agency's
contention that he had an inordinate amount of unscheduled leave
which formed the basis for issuing a letter of warning. In addition,
complainant offered little testimonial evidence to support his claims
aside from bare conclusory statements. As a result the agency's
explanations for its actions were largely undisputed.
CONCLUSION
For the reasons outlined above, the Commission concludes that the AJ's
grant of summary judgment was correct as a matter of law. Accordingly,
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
___9/25/07_____________________
Date
1 See also Petty v. Department of Defense, EEOC Appeal No. 01A24206
(July 11, 2003).
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0120070882
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070882