Charles R. Hunt, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0120063380 (E.E.O.C. Feb. 23, 2007)

0120063380

02-23-2007

Charles R. Hunt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Charles R. Hunt,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200633801

Agency No. 1H-302-0031-05

Hearing No. 110-2006-00049X

DECISION

Complainant filed an appeal with this Commission concerning his complaint

of unlawful employment discrimination. Complainant alleged discrimination

on the bases of race (African-American), color (black) and in reprisal

for prior protected EEO activity when:

1. On May 1, 2005, complainant was assigned specific duties to perform.

2. On May 31, 2005, complainant was not granted his request to change

his scheduled work hours.

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 28, 2006, the AJ issued a decision

without a hearing and effectively dismissed complainant's complaint.

The AJ dismissed claim 1 for failure to state a claim and claim 2 as

moot. The AJ also found no discrimination. The agency fully implemented

the AJ's decision. Complainant now appeals from that decision.

Failure to State a Claim

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

We find that complainant is not aggrieved as a result of the assignment

of duties alleged in claim 1. Complainant merely states that he was

assigned duties. Complainant does not claim and the record does not

indicate that complainant performed the assigned duties. The AJ found,

and the Commission agrees, that complainant does not claim that he

actually performed the duties in question. Complainant has failed to

explain how the assignment of duties rendered him aggrieved. Nothing in

the record indicates that complainant suffered any harm or loss with

respect to a term, condition or privilege of his employment for which

there is a remedy. Therefore, we find that claim 1 is properly dismissed

for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).

Summary Judgment

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.

We find that the agency articulated legitimate, nondiscriminatory

reasons for its actions. The Manager of Maintenance Operations stated

that he denied complainant's request to change his scheduled work

hours because complainant has had numerous changes of schedules over

the last four years. The Manager of Maintenance Operations said that

complainant has not worked his regular bid schedule continuously for a

long period of time and he felt that complainant had been accommodated

on numerous changes of schedules and complainant needed to return to his

bid assignment. Complainant failed to show that the agency's reasons are

pretext for discrimination. We find that complainant failed to show,

by a preponderance of the evidence, that he was discriminated against

on the bases of race, color or reprisal.

The agency's decision dismissing claim 1 and finding no discrimination

as to claim 2 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

February 23, 2007

__________________

Date

1 Due to a new data system, your case has been redesignated with the

above referenced appeal number.

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0120063380

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120063380