01984497
07-31-2001
Ricardo P. Howell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ricardo P. Howell v. United States Postal Service
01984497
07-31-01
.
Ricardo P. Howell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984497
Agency No. 1-K-221-0079-97
Hearing No. 100-98-7050X
DECISION
Ricardo P. Howell (complainant) filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final agency decision
(FAD) he received on April 24, 1998, concerning his complaint alleging
that he was discriminated against on the bases of race (African American)
color (black), and national origin (Panamanian) in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. (1994 & Supp. IV 1999). The appeal was postmarked May 22, 1998.
Accordingly, the appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented on appeal is whether complainant was discriminated
against on the abovementioned bases when on January 30, 1997, he
discovered that a coworker with whom he had an altercation on November 6,
1996 had returned to work with back pay while he remained in a removed
status.
BACKGROUND
The record reveals that during the relevant time complainant was a
Mail Handler PS-04, at the agency's Merrifield, Virginia Processing
and Distribution Center. On January 31, 1996, complainant entered into
settlement agreement with the agency, providing that future incidents
of improper conduct would result in discipline, including removal. On
November 6, 1996, complainant was assigned to work a container loader for
the second day in a row. Complainant complained to his supervisor (S-1)
about the assignment and was informed that he had to remain where he was
assigned as she was short-handed as a result of absences and, second,
because other employees did not want to work with him as they believed he
shirked his duties. Complainant sought confirmation of his co-workers
opinion, and became very upset when he found out their true feelings.
Complainant then became confrontational with his coworkers, who then
complained to S-1 that complainant was using abusive language and giving
them dirty looks. Complainant was then warned by his supervisor that
she would not tolerate any confrontations between him and his coworkers.
Later that evening complainant asked for three hours annual leave to pick
up someone from the airport. His supervisor denied him this leave as
she was short-handed and because complainant had not given her advanced
notice. At about 10:45 p.m. that same night, complainant approached
a coworker (C-1), a white male, who was on break, challenged him to go
outside and called C-1 a derogatory epithet.
While outside, complainant and C-1 got into a fight. Both complainant
and C-1 were immediately placed in an off duty, non-pay status pending
investigation of the incident. Both complainant and C-1 were eventually
terminated; however, as a result of a last chance settlement agreement
negotiated by the union, C-1 was allowed to return to work with back pay
after being given a thirty-day suspension. Believing he was a victim of
discrimination, complainant sought Equal Employment Opportunity (EEO)
counseling and subsequently filed a formal EEO complaint on April 5,
1997. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 30, 1998, the AJ issued a decision
without a hearing, finding no discrimination.
The AJ concluded that the agency treated both complainant and C-1 alike.
Further, the AJ found that the agency's and the union's decision to
rescind C-1's removal was not an agency action which could be remedied
under 29 C.F.R. � 1614.103(b)(3), and as such, that the complaint
should be dismissed for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a). Complainant also argued that his supervisor
(S-1) was motivated by discriminatory animus as she had previously
discharged another black male for a first offense. The AJ found that
prior discharges by S-1 did not show that black employees were treated
more harshly than white employees; rather, it showed that she treated
first-time offenders, both black and white, alike.
On appeal, complainant contends that his initial complaint omitted the
fact that C-1 was involved in two prior verbal altercations that were
never documented. Complainant indicated that witnesses were currently
unavailable to support his argument, but that he would submit their
affidavits once they became available. The agency requested that we
affirm its FAD.
FINDINGS AND ANALYSIS
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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, 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, the Commission finds that the
AJ correctly determined that summary judgment was appropriate and
that complainant was not subjected to race, color or national origin
discrimination with regard to the matter alleged. We note that the agency
produced exhibits which established that complainant had a prior history
of verbal confrontations, which resulted in notice to him that similar
incidents in the future could lead to his termination. In spite of this
warning, complainant proceed to engage in verbal confrontations with
several of his coworkers less than a year later, and in fact precipitated
and engaged in a physical altercation. Moreover, the record indicated
that C-1 did not have the troubled employment history as did complainant
and was in fact given the same opportunity as complainant to avoid future
confrontations when him removal was rescinded.
On appeal, complainant reveals that he previously had information
regarding prior undocumented verbal altercations by C-1 but that it
was omitted from his initial complaint. When complainant requested a
hearing he utilized the services of an attorney, yet did not include
this information during discovery nor in his motion to oppose summary
judgment. While it is appropriate to raise an issue on appeal if
information was not previously available, complainant does not make
such an argument. Complainant provides no substance to support his
allegations on appeal, nor does he provide the names of the individuals
who could support his allegation, instead stating that these purported
witnesses are presently unavailable. We also note that complainant
failed to present any persuasive evidence that the agency's actions
were motivated by discriminatory animus toward his race, color or
national origin. 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
finding of no discrimination.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final action.
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
______07-31-01________________________
Date