0120101321
07-20-2010
Ronald E. Weber, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Ronald E. Weber,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120101321
Hearing No. 530-2008-00143X
Agency No. 4C-164-0049-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's January 14, 2010 final action concerning an equal
employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a City Carrier
at the Agency's South Erie Station in Erie, Pennsylvania.
On September 29, 2007, Complainant filed the instant formal complaint.
Therein, Complainant alleged that the Agency discriminated against him on
the bases of age (over 40) and in reprisal for prior protected activity
when:
on or about June 14, 2007, he was issued a Notice of Removal.
Following the investigation into his formal complaint, Complainant
requested a hearing before an EEOC Administrative Judge (AJ). On January
6, 2010, the AJ issued a decision by summary judgment in favor of
the Agency.
In his January 6, 2010 decision, the AJ found that Complainant did
not establish a prima facie case of age and reprisal discrimination.
Specifically, the AJ found that Complainant did not establish a prima
facie case of age discrimination because he did not identify any
similarly situated employees, under the age of forty, who were treated
more favorably than he had been treated, under similar circumstances.
The AJ found that no such comparators exist; and that three named
employees were inappropriate comparators because Complainant offered no
evidence that they ever failed to follow instructions given by the Acting
Station Manager (ASM). Moreover, the AJ noted that two of the three
employees were over the age of forty, and therefore in the same protected
group as Complainant. The AJ also found that Complainant offered no
evidence that the two to five year age difference between their ages,
and the age of Complainant, was a factor in the ASM's determination to
issue Complainant the Notice of Removal.
Regarding the basis of reprisal, the AJ found that the approximately
two-year period between Complainant's prior EEO complaint, filed in
May 2005, and the subject June 2007 Notice of Removal is too long a
time-period for an inference of reprisal. Finally, the AJ noted that
Complainant filed a grievance against a Supervisor, Customer Service.
However, the AJ concluded that the mere pursuit of the grievance process,
without more, is not considered prior protected activity.
The AJ noted that the ASM stated that on June 14, 2007, he issued
Complainant a Notice of Removal for improper conduct and failure to
follow instructions. The AJ noted that according to Complainant, he
stated that on June 14, 2007, he was issued a Notice of Removal which
was his sixth notice in the past five years. The AJ further noted that
ASM stated that on May 24, 2007, he observed Complainant pulling down
his route and collating the sequenced Lowes flyers with his cased mail
and instructed him to stop and take them to the street. Specifically,
ASM stated that he told Complainant "you need to stop collating this
mail, I want you to take those fliers to the street as a third bundle.
And that's when he said, no, I collate them." The record reflects that on
the same day, approximately at 8:45 a.m., ASM observed Complainant exiting
the building when he approached him and instructed him to take two relays
from auxiliary route 808 with him for delivery. ASM stated that at that
point, Complainant was leaving work early and he felt that Complainant
had sufficient time to deliver the relays within his eight-hour tour.
The record further reflects that ASM explained to Complainant if he did
not have time to deliver the relays to bring them back to the office but
Complainant failed to respond to his instructions and left the office
without taking the relays with him. The record reflects that as a result,
ASM made arrangements to have another carrier to delivery the relays.
Further, the record reflects that at approximately 12:30 p.m., Complainant
returned to the office and took two relays but failed to notify management
that he took the relays until his return to the office at 3:25 p.m.
The record reflects that at that time, Complainant brought back the
two relays with him because he did not have time to deliver them.
As a result, ASM had to send out a carrier out on overtime to deliver
the two relays.
ASM stated that he has Complainant to meet him in his office and he told
Complainant "I need your cooperation with me, your obstinate refusal and
refusal to obey my instructions is a terrible example. He would do it in
front of the other employees. You tell him to do something, he would say,
no, fire me, I don't care. I brought him in and said if you're willing
to cooperate and work with me, I'm willing to do the same for you. And,
you know, I said it's up to you, do you want to take me up on my offer?
And he either wouldn't answer me or said, no." Moreover, ASM stated
that Complainant's age was not a factor in his determination to issue
him the June 14, 2007 Notice of Removal.
On January 14, 2010, the Agency issued its final action implementing
the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. Therefore, after a review of the record
in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the Agency's final action because the Administrative
Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that unlawful
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
July 20, 2010
__________________
Date
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0120101321
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101321