0120055639
02-02-2007
Casey L. Flowers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Casey L. Flowers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01200556391
Agency No. 1C-276-0002-04
Hearing No. 140-2005-00105X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 1, 2005 final order concerning his equal
employment opportunity (EEO) complaint alleging 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. Complainant alleged that the agency
discriminated against him on the bases of race (Black), national origin
(African-American), sex (male), and color (dark-skinned) when since
August 27, 2003 and continuing, he has been denied the opportunity to
work as an Expeditor.
BACKGROUND
On December 2, 2003, complainant filed an EEO complaint based on the
denial of his request to be trained as an Expeditor at the agency
facility in Raleigh, North Carolina. At the conclusion of the
agency investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On April 25, 2005, the AJ issued a Notice
of Intent to Issue Summary Judgment and requested comments or objections
from the parties. The agency filed a Motion for Decision on the record
on May 16, 2005 and the complainant filed his objections to a decision
without a hearing on May 20, 2005. The AJ issued her decision on July 21,
2005, finding that the case was suitable for a decision on the record, and
finding that complainant had not been discriminated against as he claimed.
The agency issued its final agency order on August 1, 2005, implementing
the AJ's decision, and complainant appealed on August 23, 2005.
ANALYSIS
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, 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.
The facts of the case are undisputed. Complainant, a Flat Sorter /
Machine Operator at the Processing and Distribution Center in Raleigh,
North Carolina put in a request with his first level supervisor to be
trained as an Expeditor.2 Complainant's supervisor inquired about the
possibility with the Manager, Distribution Operations, who responded
by asking about complainant's attendance record. When told that his
attendance was poor, but was covered by the Family Medical Leave Act
(FMLA), the Manager responded that he did not need another person with an
attendance problem. The Manager also testified that the person currently
in the sole Expeditor position on that tour was placed there through the
bidding process, that there were currently 3 trained backup personnel
and that there was no need to train another person for the position.
Complainant had not applied for the position through a posted vacancy
notice, but had initiated the request for training on his own.
Although the current Expeditor was of a different race than complainant,
the Manager and the three backup Expeditor personnel were all identified
as having the same race and national origin as complainant. Complainant
has not shown, either in his arguments before the AJ or on appeal, how
he was denied the opportunity to be trained as an Expeditor due to his
race, national origin, sex or color. 3
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
February 2, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 The record does not contain an explanation of what duties are performed
by an Expeditor.
3 We note that despite complainant's arguments that he was denied the
opportunity to train as an Expeditor due to his use of FMLA leave, at
no point in the processing of this complaint has he claimed disability
discrimination. Violations of the FMLA are not properly addressed
through the administrative process administered by the Commission.
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0120055639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055639