Casey L. Flowers, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Equal Employment Opportunity CommissionFeb 2, 2007
0120055639 (E.E.O.C. Feb. 2, 2007)

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