Ricardo P. Howell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 31, 2001
01984497 (E.E.O.C. Jul. 31, 2001)

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