Robert J. Thompson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 13, 2005
01a45884 (E.E.O.C. Dec. 13, 2005)

01a45884

12-13-2005

Robert J. Thompson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Robert J. Thompson v. United States Postal Service

01A45884

December 13, 2005

.

Robert J. Thompson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 01A45884

Agency No. 1F-895-0005-03

Hearing No. 370-2004-00166X

DECISION

JURISDICTION

On September 1, 2004, complainant filed an appeal from the agency's

final agency order concerning his equal employment 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. On appeal,

complainant requests that the Commission reverse the agency's acceptance

and implementation of an EEOC Administrative Judge's (AJ) finding of no

discrimination. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Part-Time Flexible (PTF) Tractor-Trailer Operator in the agency's

Reno Processing & Distribution Center, Motor Vehicle Services (MVS),

Reno Nevada. Under the agency Collective Bargaining Agreement (CBA),

a hold down assignment is one that fills a full-time regular (FTR)

employee's usual assignment when it is temporarily vacant and is filled

on the basis of seniority. Complainant stated that his request for a

hold down assignment was denied by his supervisor despite his becoming

the senior PTF on December 28, 2002.

The record reveals that on December 23, 2002, complainant relinquished

his hold down on Route 9, stating: �Hold Down on Route #9 ends 12-28-02.

I would like to be put back on any and all day routes that come up for now

I am the Senior PTF.� Thereafter, employee 1 (E1), with less seniority

than complainant, requested a hold down for Route 10, a night shift,

immediately after it opened on December 24, 2002. The CBA stated that

the length of time between the posting and awarding of temporary hold

down bids shall not exceed 72 hours. After being informed that the MVS

was reducing hours during daytime routes, complainant, on December 27,

2002, requested a hold down on Route 10. The agency informed complainant

that the Route 10 assignment had been assigned to E1.

On January 15, 2003, complainant contacted an EEO counselor and filed a

formal EEO complaint on April 1, 2003, alleging that the agency retaliated

against him for prior EEO activity when he was denied a hold down.

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 adopted the agency's facts and applicable law as set forth in its

Motion for Summary Judgment. The AJ summarily concluded that complainant

failed to show by a preponderance of the evidence, that he was a victim

of reprisal. In its Motion for Summary Judgment, the agency concluded

that complainant failed to establish a prima facie case of reprisal.

Specifically, the agency found that complainant did not request a

vacant hold down position. Further, the agency found that there was no

evidence of retaliatory animus or any nexus between the agency's action

and complainant's prior protected activity. The agency found that

it had stated a legitimate, nondiscriminatory reason for its action.

Specifically, complainant was not entitled to displace E1 from a hold

down position after the 72 hour open period had closed as required by

the CBA.

On appeal, complainant restates arguments previously made in opposition to

the agency's Motion for Summary Judgement. Complainant further contends

that there were credibility issues with his supervisor and that he was

denied twelve hours of official time to prepare and present his opposition

to the agency's request for summary judgement. In response, the agency

restates its position contained in the Motion for a Decision without

Hearing and contends that complainant and E1 were the only remaining

PTF MVS employees as of December 28, 2002, when the Senior PTF became

a FTR assigned to Route 9.

STANDARD OF REVIEW

In rendering this appellate decision we must scrutinize the AJ's legal

and factual conclusions, and the agency's final order adopting them,

de novo. See 29 C.F.R. � 1614.405(a) (stating that a �decision on

an appeal from an agency's final action shall be based on a de novo

review . . .�); see also EEOC Management Directive 110, Chapter 9, �

VI.B. (November 9, 1999). (providing that an AJ's �decision to issue a

decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be

reviewed de novo�). This essentially means that we should look at this

case with fresh eyes. In other words, we are free to accept (if accurate)

or reject (if erroneous) the AJ's and agency's, factual conclusions and

legal analysis including on the ultimate fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id. at Chapter 9,

� VI.A. (explaining that the de novo standard of review �requires that

the Commission examine the record without regard to the factual and

legal determinations of the previous decision maker,� and that EEOC

�review the documents, statements, and testimony of record, including

any timely and relevant submissions of the parties, and . . . issue its

decision based on the Commission's own assessment of the record and its

interpretation of the law�).

ANALYSIS AND FINDINGS

Complainant argues on appeal that the agency denied him twelve (12)

hours of official time. However, complainant offers no evidence in the

record of his request for official time nor is there any evidence that

the agency denied this alleged request.

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. 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 in dispute.

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 Corp. 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, a

hearing is required. In the context of an administrative proceeding,

an AJ may properly consider issuing a decision without a hearing only

after determining that the record has been adequately developed for

summary disposition. See Petty v. Department of Defense, EEC Appeal

No. 01A24206 (July 11, 2003).

With respect to complainant's claim of retaliation, complainant can

establish a prima facie case of reprisal discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference

of discrimination. Shapiro v. Social Security Admin., EEOC Request

No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in

accordance with the burdens set forth in McDonnell Douglas, Hochstadt

v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324

(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department

of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a

complainant may establish a prima facie case of reprisal by showing that:

(1) he or she engaged in a protected activity; (2) the agency was aware

of the protected activity; (3) subsequently, he or she was subjected

to adverse treatment by the agency; and (4) a nexus exists between the

protected activity and the adverse treatment. Whitmire v. Department

of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).

Here, we find that there is no genuine issue of material fact.

Complainant had previously engaged in the EEO process. He had more

seniority than E1 who was the only other PTF in the MVS. E1 requested

a hold down position on December 24, 2002, when the position opened.

The CBA stated that an opening for a hold down position would be open for

72 hours. Complainant requested the Route 10 hold down position over 72

hours after that hold down vacancy had been posted and his supervisor

denied him the position. While complainant contends that there are

unresolved credibility issues with his supervisor that need to be

resolved at hearing, he failed to specifically state what the credibility

issues were. Complainant had the opportunity to apply for the hold down

vacancy, but wanted to work on the day shift and only changed his mind

when he discovered that the agency was reducing day shift hours of work.

Complainant failed to show that other employees were allowed to rescind

a granted hold down request of a coworker with less seniority after the

72 hour open period had expired. We find that complainant has failed

to establish that there is a genuine issue of material fact in dispute

concerning why he was denied the hold down position.

Therefore, the Commission finds that a decision without a hearing was

appropriate. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we conclude that complainant failed to present evidence

that any of the agency's actions were motivated by retaliation for his

prior EEO activities. The agency's final order is hereby 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:

December 13, 2005

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations