01a44790
10-26-2004
Augustin Job, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Augustin Job v. United States Postal Service
01A44790
October 26, 2004
.
Augustin Job,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44790
Agency No. 1G-771-0070-03
Hearing No. 330-2004-00032X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant is an Electronic Technician at the agency's Houston Processing
and Distribution Center in Houston, Texas. The record reflects that
on March 3, 2003, complainant attended a MERLIN maintenance training
at the agency's training facility in Norman, Oklahoma; that training
began on March 3, 2003, and ended on March 13, 2003; and all Electronic
Technicians, including complainant, were authorized four hours travel
time by plane to and from the training facility. Complainant elected to
drive his personal vehicle rather than travel to the training facility
by air. The record reveals that complainant traveled a whole day on
March 14, 2003, to return home. Upon returning to duty on March 15, 2003,
complainant's Supervisor asked complainant to fill out a leave slip for
four hours of annual leave for March 14, 2003, which was his regular day
of work. Complainant informed his Supervisor that he felt he was entitled
to eight hours of travel time instead of four hours of travel time.
On July 19, 2003, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against him on
the basis of race (Asian) when on March 15, 2003, he was charged annual
leave in lieu of travel time for training.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 17, 2004, the AJ issued a Notice
of Intent to Issue a Decision Without a Hearing, allowing the parties
to file a written response to the Notice. The record reveals that both
parties responded. On June 10, 2004, the AJ issued a decision without
a hearing, finding no discrimination.
In her decision, the AJ concluded that complainant failed to establish a
prima facie case of race discrimination because he failed to demonstrate
that similarly situated employees not in his protected class were treated
differently under similar circumstances. Even assuming that complainant
could establish a prima facie case of discrimination, the AJ concluded
that the agency articulated legitimate, nondiscriminatory reasons for its
actions which were not persuasively rebutted by complainant. Specifically,
in his affidavit, complainant's Supervisor stated that all employees,
including complainant, were provided the opportunity to travel by air and
were provided four hours paid travel time to and from the Norman, Oklahoma
training facility. The Supervisor further stated that complainant
chose to travel by personal vehicle instead of by air, and the he was
therefore given only four hours travel time and "elected to use annual
for the remaining 4 hours. This is in compliance with Handbook F-15."
The Supervisor stated that complainant's race played no role in the
agency's actions on this matter.
With respect to complainant's claim that two comparative employees were
paid eight hours travel time, the AJ noted the record contains copies
of the comparative employees' TACS AdjustPay Adjustment Certification.
Therein, the AJ noted that the two comparative employees were paid eight
hours travel time in error, and that upon discovery, the agency corrected
the two comparative employees' eight hours travel time to four hours
travel time; one employee took four hours of sick leave and the other
elected to take four hours of annual leave.
The agency's final action implemented the AJ's decision.
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 careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. 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 note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected class.
Accordingly, the agency's final action implementing the AJ's decision
was proper and is 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 26, 2004
__________________
Date