01A11026
09-19-2001
Elmer L. Gales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elmer L. Gales v. United States Postal Service
01A11026
09-19-01
.
Elmer L. Gales,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11026
Agency No. 1-H-374-0081-98
Hearing No. 250-AO8120X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaints 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;
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleges he was discriminated against
on the bases of race (African American), disability (asthma and hip
surgery), sex and reprisal (prior EEO activity) when: (1) on November
17, 1997, he was informed that he would not be promoted to a level-3
custodian position retroactive to 1995 (race and disability); and (2)
he was not given the opportunity to train or be detailed to an Auto Cad
position (disability, sex and reprisal). For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant was a custodian, level-2, at the
agency's Bulk Mail Center in Memphis, Tennessee. Complainant transferred
from mail processing as a mail handler, level-4, and became a custodian,
level-2. In contrast, a co-worker transferred from mail processing as
a mail handler, level-4, and became a custodian, level-3. He noted
that other individuals were promoted to level-3, but due to surgery
for a service related injury, he was not. Complainant was told by a
supervisor that he could not be promoted because of budgetary reasons.
The record indicates that, in 1997, complainant was offered a promotion
to level-3, however, complainant declined the offer because he desired a
retroactive promotion to 1995. On April 1, 1999, the union accepted the
agency's promotion offer to level-3 on behalf of complainant, effective
May 22, 1999.
On September 2, 1998 and October 28, 1998, complainant claimed that he
was not given the opportunity to train or be detailed to the position
of Auto Cad. Instead, a female co-worker was placed in the position.
The Maintenance Manager (MM) averred that the female co-worker was
detailed to the �Tech Staff� position, noting that an �Auto Cad� position
did not exist. The Tech Staff position required coordinating �Fixed
Mech Projects and Repair and Alteration Projects.� The criteria used in
selecting an employee for the detail were technical skills and abilities
of a Mail Processing Equipment Mechanic, as well as electrical, electronic
and mechanical knowledge, skills and abilities (KSA). Knowledge of
Auto Cad software was not a requirement. MM averred that complainant,
along with five other employees (four males and one female), were given
a temporary detail to determine whether they had the KSAs for the Tech
Staff position. MM further averred that complainant did not have the
required KSAs.
Complainant filed two formal EEO complaints with the agency on
September 11, 1998 and February 8, 1999, alleging that the agency had
discriminated against him as referenced above.<1> At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
With respect to issue 1, the AJ concluded that complainant failed to
establish a prima facie case of race or disability discrimination,
because complainant's identified comparators were African American, and
he supplied no information relating to his disability. Even assuming
arguendo that complainant established a prima facie case, the AJ concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its action. Specifically, the AJ found that: (1) on June 5, 1995,
complainant submitted a signed statement which read, �I, [complainant],
do not want to be promoted to level-3;� and (2) on December 20, 1995,
he submitted a signed statement in which he sought two other positions,
but left blank a request for promotion to �Custodian/Laborer, PS-03.� The
AJ determined that these two statements evidenced that complainant did
not want to be promoted to level-3. The AJ did not find complainant to
be a credible witness. The AJ further noted that complainant rejected
an offer for a promotion to level-3 in 1997 because the agency would
not make the promotion retroactive to 1995. The AJ concluded that
complainant failed to establish that more likely than not, the reasons
provided by the agency were a pretext for discrimination or retaliation.
With respect to issue 2, the AJ again found that complainant had
not provided any information related to his disability to establish
a prima facie case of disability discrimination. The AJ further
determined that the position of �Auto Cad� did not exist, and thus
complainant could not establish a case of sex discrimination. Finally,
with respect to complainant's claim of reprisal discrimination, the
AJ concluded that complainant could not establish a prima facie case
because he did not attend pre-complaint counseling until three months
after the incident complained of in issue 2 occurred and MM had no prior
knowledge of complainant's EEO activities. The AJ then determined that,
assuming arguendo that a prima facie case was established, the agency
articulated legitimate, nondiscriminatory reasons for its action. Namely,
complainant was not selected for the position of Tech Staff because he
was unable to demonstrate the minimum skills required for the position.
The AJ concluded that complainant did not meet his burden of establishing
unlawful discrimination by a preponderance of the evidence. The agency's
final order implemented the AJ's decision.
On appeal, complainant contends, among other things, that: 1) he was
terminated from the Auto Cad detail because he filed an EEO complaint;
2) his physical impairments meet the requirements of the Rehabilitation
Act; and 3) the agency failed to respond to the Show Cause Order.
Complainant states that he was placed in an unfair position because he
did not receive the benefit of a complete investigation. The agency
made no statements on appeal.
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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an
AJ may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
Notwithstanding the AJ's credibility determination,<2> the Commission
finds that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were in retaliation for complainant's EEO activity or were motivated
by discriminatory animus toward complainant's race, disability or sex.
The Commission discerns no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including complainant's contentions
on appeal, and arguments and evidence not specifically addressed in this
decision, 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
_____09-19-01_____________
Date
1 We note that the two complaints were
consolidated under Agency No. 1-H-374-0081-98.
2 Credibility is a determination as to whether the testimony of the
witness should be believed, especially if it is in conflict with
the testimony of other witnesses or evidence. It is the role of the
administrative judge to make findings on the credibility of witnesses
during hearings. We note that the credibility determinations of an AJ are
entitled to deference due to the judge's first-hand knowledge through
personal observation of the demeanor and conduct of the witnesses.
See Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996). Here, the AJ did not have the opportunity to observe
the demeanor and conduct of complainant because a hearing was not held.