01a54483r
11-23-2005
Carl L. Morrison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Carl L. Morrison v. United States Postal Service
01A54483
November 23, 2005
.
Carl L. Morrison,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 01A54483
Agency No. 4K-220-0065-04
Hearing No. 100-2005-00263X
DECISION
Complainant timely initiated an appeal from the agency's final order
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 complainant is employed as a Postmaster at the
Flint Hill, Virginia Post Office. Complainant's Acting Manager, issued
a proposed Letter of Warning in Lieu of 30-Day Time-Off Suspension to him
on or about April 8, 2004. In the proposed Letter of Warning, complainant
was charged with unsatisfactory performance, failure to properly perform
duties of the position, and unauthorized use of an agency credit card.
After reviewing the comments of complainant and his representative, the
Manager of Post Office Operations (MPOO) issued a Letter of Decision
on June 3, 2004 in which he upheld the proposed Letter Of Warning.
On or about August 24, 2004, the MPOO modified the proposed Letter Of
Warning by reducing it to an Letter Of Warning in lieu of a seven-day
time off suspension.
Complainant filed a formal EEO complaint on July 14, 2004, alleging that
the agency discriminated against him on the bases of race (Caucasian),
disability, and age (born March 31, 1953) when the agency issued him a
Letter of Decision that upheld the Letter of Warning.
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 8, 2005, the AJ issued a Notice of Intent to Issue
a Decision without a Hearing. On March 23, 2005, the agency moved for
a decision without a hearing, to which complainant responded. In his
response, complainant stated that there were issues that were in dispute.
In particular, complainant maintained that the Officer in Charge of
the Post Office before he returned to the facility was responsible for
an overage and failed to inform the Acting Manager about the matter,
but the agency blamed him for the problem. Complainant contended that
he assumed that the Officer in Charge's stock accounting was correct,
but when he discovered the overage, he reported the matter to a mentor
Postmaster who assured him that the matter would be reported to the MPOO.
Complainant further maintained that the handling of suspicious powder
has been a nationwide problem, and noted that had not received any
refresher training on the matter since he had returned to work after
six months of emergency placement. Complainant also maintained that the
use of the agency's credit card for the purchase of a personal item was
�an honest mistake and funds were replaced.� The AJ issued a decision
without a hearing, finding no discrimination. The agency's final order
implemented the AJ's decision.
The Acting Manager stated the she issued the discipline against
complainant because he failed to follow agency procedures. Specifically,
the agency maintained that complainant used the agency credit card to
purchase food at a restaurant in the amount of $55.46. Additionally, the
agency charged complainant with failing to properly perform his duties as
postmaster by not immediately reporting a suspicious white powder found
in an envelope at the post office. The agency maintained that complainant
waited for three hours before he called the MPOO's office to report the
suspicious powder and to initiate emergency procedures. The agency also
concluded that on January 6, 2004, complainant discovered an overage of
$5000.00, but did not immediately contact his MPOO as instructed. The
agency maintained that complainant had been instructed by the MPOO to
immediately report any overages to the MPOO.
On appeal, complainant directs the Commission to his response to the
agency's motion for a decision without a hearing, which he maintains
supports his contention that the AJ erroneously issued a decision without
a hearing in favor of the agency. In response, the agency requests that
we affirm its final order.
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).
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). In order to establish a prima facie case of discrimination,
the complainant must first demonstrate that: (1) he is a member of a
protected class; and (2) he was treated differently, with respect to
some condition of employment, from similarly situated individuals outside
his protected class or in any other manner that creates an inference of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The burden of production then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the
agency has articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action, or
merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511 (1993). Although the burden of production may shift,
the burden of persuasion, by a preponderance of the evidence, remains
at all times on complainant. Burdine, 450 U.S. at 256.
For purposes of analysis and without finding we assume that complainant
is an individual with a disability entitled to coverage under the
Rehabilitation Act. While complainant has demonstrated that he is a
member of the claimed protected classes, he has failed to show that a
similarly situated individual outside his protected classes was treated
more favorably than he under similar circumstances. Complainant maintains
that an Officer in Charge should have reported the overage, another
Postmaster had also used his credit card to purchase personal items but
was not disciplined, and other offices had problems with the handling of
powder substances. However, complainant failed to demonstrate that there
was another similarly situated individual not within his protected classes
who allegedly engaged in the same type of cumulative conduct involved in
this case. Complainant's attempt to compare individuals who allegedly
engaged in single instances of misconduct is not sufficient to raise
an inference of unlawful discrimination because complainant engaged
in multiple instances of misconduct. Complainant failed to provide
any other evidence from which a reasonable fact-finder could draw an
inference of race, age, or disability discrimination. Consequently,
we find that the AJ properly found no discrimination.
Therefore, after a careful review of the record, the Commission finds
that the issuance of a decision without a hearing 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 conclude that complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes. Accordingly,
the Commission AFFIRMS the agency's final order.
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
_November 23, 2005_____________
Date