01a40694
07-28-2005
______________, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
______________ v. United States Postal Service
01A40694
July 28, 2005
.
______________,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A40694
Agency Nos. 4H-335-0068-01 and 4H-335-0098-01
Hearing No. 150-A1-9035X
DECISION
Complainant timely initiated an appeal from a final order concerning his
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 appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that during the relevant time, complainant
was employed as an Electronic Technician at the agency's Lakeland,
Florida facility. Complainant sought EEO counseling and subsequently
filed formal complaints alleging that he was discriminated against on
the basis of race (Caucasian) when from June 12 through June 23, 2000,
October 15 through October 20, 2000, and October 22 through 27, 2000,
the agency denied his request for annual leave.
At the conclusion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing with AJ, but the agency moved for a decision without a
hearing. The AJ granted the agency's motion and found no discrimination.
The agency fully implemented the AJ's decision in its final order.
On appeal, complainant contends that the AJ improperly found no
discrimination and mainly restates arguments previously made during the
investigation. He notes that the agency's stated reason for denying him
annual leave, exhaustion of earned annual leave, is not a reason cited in
the union agreement for denying leave. Complainant further argues that
the agency offered two conflicting reasons for denying his leave requests.
Complainant notes that his supervisor contends that he denied complainant
leave because he exhausted his leave balance, but the Maintenance Manager
responded that complainant was denied leave because of the operational
needs of the agency. Finally, complainant argues that the AJ erred when
she denied his request to amend his complaint to include reprisal as a
basis for the agency's actions.
The record reveals that complainant was denied requests for 72 hours of
annual leave in June 2000 and 80 hours of annual leave in October 2000.
A substitute supervisor approved complainant for 32 hours of annual
leave for the week after Thanksgiving 2000. Complainant alleged that an
African-American co-worker (C1) who worked Tour 1 and was supervised by
his supervisor was granted 175.5 hours of annual leave although he only
had earned 150 hours of leave, and a Hispanic employee (C2) who worked
for the same supervisor was granted leave in excess of the amount of
leave he had earned. He also alleged that another African-American (C3)
employee who worked Tour 2 and was supervised by another supervisor was
also granted annual leave in excess of what he earned in 2000.
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, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
As an initial matter, we find that the AJ improperly denied complainant's
request to add reprisal as a basis for his claim. We note that during in
his investigative affidavit, complainant first requested that reprisal
be added as a basis for his complaint. The Commission has held that a
complainant may allege discrimination on all applicable bases, including
sex, race, national origin, color, religion, age, disability and reprisal,
and may amend his complaint at any time, including at the hearing, to add
or delete bases without changing the identity of the claim. See Sanchez
v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. United
States Postal Service, EEOC Request No. 05940563 (January 19, 1995).
Therefore, we amend complainant's instant complaint to include the basis
of reprisal for prior EEO activity.
Assuming arguendo that complainant established prima facie cases of
race discrimination and reprisal, we find that complainant's supervisor
provided a legitimate, non-discriminatory reason for denying complainant's
June and October 2000 leave requests, namely, that complainant's requests
exceeded his annual leave allowance for the year. Complainant responded
that his supervisor's explanation contradicts the Maintenance Manager's
claim that complainant was denied leave to meet the agency's operational
needs. However, while the Maintenance Manager gave the additional reason
of �operational needs� as an explanation for denying complainant leave,
he affirmed in an investigative affidavit dated September 11, 2001 that
complainant was denied leave because his requests exceeded his leave
balance. Moreover, complainant's supervisor was the agency official who
denied complainant's leave requests, not the Maintenance Manager, who
denied any role in denying complainant leave. Complainant also contends
that three co-workers were granted leave during the relevant time period
beyond their annual leave balance. However, the record reveals that
C1 and C2 were custodians who were not in the same occupational group
as complainant, and C3 worked on a different tour than complainant and
was supervised by a different supervisors. These comparators were not
similarly situated to complainant. Complainant also argues that the
agency's explanation is not cited as a basis for denial of leave in the
union agreement. However, we find that the allegation that the agency
restricted leave beyond the provisions of the union agreement is not
persuasive evidence of pretext in this case. We find that complainant
failed to provide any evidence from which a reasonable fact-finder could
conclude that the agency's explanation was pretext for reprisal or race
discrimination. Consequently, we find that the AJ properly issued a
decision without a hearing, finding no discrimination.
Finally, we note that on appeal, complainant appears to request that his
instant complaint be consolidated with his previous complaints and his
spouse's complaints. However, we note that the Commission has issued
final decisions on all of the complaints cited by complainant in his
request for consolidation. These complaints cannot be reopened at this
juncture. Consequently, we deny complainant's request for consolidation.
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 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
_July 28, 2005_________________
Date