01A12194
09-18-2001
Arturo C. Raz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arturo C. Raz v. United States Postal Service
01A12194
09-18-01
.
Arturo C. Raz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12194
Agency No. 1F-915-0007-98
Hearing No. 340-99-3279X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant filed a complaint in which he claimed that the agency
discriminated against him on the basis of disability (left heel bone
spur, ulcerative colitis), in violation of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791, by: (1) denying his request for a
change-in-schedule to see an EAP counselor on February 20, 1998, in a
manner that caused him to suffer public humiliation and embarrassment;
and (2) by issuing him a 14-day suspension on March 2, 1998. The agency
investigated the matter and thereafter referred it to an administrative
judge (AJ), who issued a decision finding no discrimination without
holding a hearing. The agency issued a final order accepting the AJ's
decision. It is from this final order that complainant now appeals.
The Commission's regulations provide that an Administrative Judge (AJ)
may issue findings and conclusions without a hearing if �some or all
material facts are not in genuine dispute and there is no genuine issue
of credibility.� 29 C.F.R. � 1614.109(g)(1). 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.
As to the February 1998 incident, the record reveals that the supervisor
discussed complainant's need to see an EAP counselor in private, and
that complainant was not delayed in seeing the counselor. Consequently,
we find that complainant failed to even state a claim with respect to
the February 1998 incident. Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
In order to present a genuine issue of material fact with respect
to his disability discrimination claim under the Rehabilitation Act,
complainant must demonstrate that he is a qualified individual with a
disability who had been subjected to one or more adverse actions because
of his disability. See Swanks v. WMATA, 179 F.3d 929, 934 (D.C.Cir. 1999);
Heyman v. Queens Village Committee for Mental Health for Jamaica Community
Adolescent Program, 198 F.3d 68 (2d Cir. 1999). Where the agency denies
that its decisions were motivated by complainant's disability and there
is no direct evidence of discrimination, we apply the burden-shifting
method of proof set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Swanks, 179 F.3d at 933. Under this analysis, in order
to establish a prima facie case, complainant must demonstrate that:
(1) he is an "individual with a disability"; (2) he is "qualified" for
the position held or desired, i.e. can perform the essential functions
with or without accommodation; (3) he was suspended, and (4) a causal
connection exists between his disability and the suspension. Swanks, 179
F.3d at 933-34. We find that complainant failed to present any evidence
whatsoever linking his disability to that suspension. Accordingly,
we find that complainant has not presented a genuine issue of material
fact with respect to his disability discrimination claim.
Where reprisal is at issue, 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, 411 U.S. at 802). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, and 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 engaged in a protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse action. In this
case, complainant has an extensive history of filing EEO complaints.
He filed at least one complaint against the supervisor whom he named
in the instant complaint. The suspension at issue occurred after he
filed the previous complaint, although the record does not identify how
much time elapsed between the prior complaint and the suspension. On
the basis of the record before us, we will assume that complainant has
established a prima facie case of reprisal with respect to the 2-week
suspension that he received in March 1996.
Once complainant establishes a prima facie case, the burden of production
shifts to the agency to articulate a legitimate, non-discriminatory
reason for the adverse employment action. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant's supervisor,
the district operations manager, stated in his affidavit that on February
11, 1998, during an argument with a co-worker, complainant lost his temper
and began shouting obscenities at the co-worker and shaking the mail case.
We find this reason to be legitimate and nondiscriminatory.
To ultimately prevail, complainant must prove, by a preponderance of
the evidence, that the agency's explanation is pretextual. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In this case, complainant admitted in his appeal brief that he engaged in
the conduct that led to his suspension. He also admitted his belief that
the agency may have been motivated by the fact that he had previously
contacted the OSHA to report numerous safety violations in the building
where he worked. Whistle-blowing not related to employment discrimination
is not within the purview of the Commission's enforcement authority.
Moreover, the three employees whom complainant cites as comparative
employees were disciplined more severely, not less, in that each was
given a 30-day suspension that had been reduced from a termination.
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 (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
_____09-18-01_____________
Date