01A42820r
07-20-2004
Cornelio D. McDonald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Cornelio D. McDonald v. United States Postal Service
01A42820
July 20, 2004
.
Cornelio D. McDonald,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 01A42820
Agency No. 4A-110-0065-01
Hearing No. 160-A3-8087X
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.
The appeal is accepted for the Commission's de novo review 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, a Letter Carrier at the agency's
Fresh Meadows Post Office in the Queens, New York facility, filed a
formal EEO complaint on January 17, 2001, alleging that the agency had
discriminated against him on the bases of race (Hispanic), national origin
(Panama), sex (male), religion (Catholic), color (Black), and reprisal
for prior EEO activity<1> when:
(1) Complainant was given a Notice of 7 Day Suspension which was modified
to a Letter of Warning,
Complainant's request for 4 hours annual leave was denied,
Complainant was charged with missed overtime opportunity,
Complainant was forced to work 1.5 hours late for overtime,
Complainant's schedule change request was disapproved,
Complainant was questioned about sick leave usage for dependent care; and
Complainant's request for light duty was denied.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency motioned for a decision without a hearing, and
after due consideration, the AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination. Specifically, the AJ found that complainant failed
to demonstrate that similarly situated employees not in complainant's
protected classes were treated differently under similar circumstances,
and there was no evidence that he was discriminated against as alleged.
The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing
and requests that records be subpoenaed to prove his case. However,
the time period for discovery has lapsed and it does not appear from the
record that complainant responded to the agency's discovery requests or
to the agency's motion to compel discovery. 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).
To establish a prima facie case of discrimination based on race/national
origin, religion or sex, complainant must show that he is a member of a
protected group, that he was subjected to an adverse employment action and
that he was treated less favorably than other similarly situated employees
outside of his protected groups. We note that it is not necessary for
complainant to rely strictly on comparative evidence in order to establish
an inference of discriminatory motivation necessary to support a prima
facie case. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he or she engaged in a protected
EEO activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Upon review, we find that complainant has failed to establish a prima
facie case of discrimination on any of his alleged bases. Complainant
has not shown that there were similarly situated individuals outside
of his protected groups, who were treated more favorably under similar
circumstances nor is there any other evidence from which an inference of
discrimination can be drawn. See Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978).
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 conclude that complainant has failed to present sufficient
evidence from which a reasonable fact finder could conclude that the
agency's actions were motivated by discriminatory animus. Accordingly,
we discern no basis to disturb the AJ's decision, and we AFFIRM 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
_July 20, 2004_________________
Date
1We note that we are unable to ascertain under
what statute complainant engaged in prior protected EEO activity, but
the agency does not dispute that complainant engaged in prior protected
activity.