01a53365_r
08-31-2005
Terry E. Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terry E. Clark v. United States Postal Service
01A53365
August 31, . 2005
.
Terry E. Clark,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53365
Agency Nos. 4H-335-0274-03; 4H-335-0092-04
Hearing No. 150-2004-00473X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order concerning his formal EEO 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.
The record reveals that at the relevant time, complainant was employed
as a rural carrier in Tampa, Florida.
Complainant filed two formal complaints, claiming discrimination on the
bases of race, color, sex, and in reprisal for prior protected activity.
In Agency No. 4H-335-0274-03, complainant claimed that on September 6,
2003, he received a Notice of Removal for continually refusing to inform
his superiors whether he would return from his route by 5:00 pm.
In Agency No. 4H-335-0092-04, complainant claimed that following his
reinstatement to agency employment, he was again removed from agency
employment after failure to comply with a grievance settlement.
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 two captioned complaints were consolidated by the AJ.
In a March 8, 2005 decision, the AJ determined that there were no
material facts in dispute and issued a summary judgment decision,
finding no discrimination.
In his decision, the AJ found that an agency motion for a decision without
a hearing properly set forth the undisputed facts and applicable law.
The AJ incorporated by reference the agency motion in his decision.
In its motion, the agency argued that complainant failed to establish
a prima facie case of discrimination on the claimed bases; that it
articulated legitimate, non-discriminatory reasons for its actions;
and that complainant did not show that the articulated reasons were a
pretext for discrimination.
Concerning the complaint addressing the first Notice of Removal (Agency
No. 4H-335-0274-03), the agency stated that complainant was issued the
Notice of Removal, for not following instructions when he refused to
answer his supervisors, after being asked several times, whether he
thought he would finish his route by 5:00. The agency stated that
agency's policy dictated that carriers provide management with route
information. The agency asserted that due to complainant's pattern
of disciplinary violations, management decided to issue the Notice of
Removal.
Concerning the second Notice of Removal (Agency 4H-335-0092-04), the
agency asserted that complainant was issued this Notice after he refused
to comply with a grievance settlement that provided that he initiate
contact with the Employee Assistant Program. Complainant acknowledges
in his response to Request for Admissions that he refused to contact the
Employee Assistant Program and thus breached the grievance settlement
agreement.
On March 14, 2005, the agency issued a final order that implemented the
AJ's decision finding no discrimination.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a 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.
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 order,
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 discrimination occurred.
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
August 31, 2005
__________________
Date