01A42500_r
07-26-2004
Gabriel Bernal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gabriel Bernal v. United States Postal Service
01A42500
July 26, 2004
.
Gabriel Bernal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42500
Agency No. 4G-770-0284-03
Hearing No. 330-2004-00009X
DECISION
Complainant appeals to the Commission from the agency's February 23, 2004
decision finding no discrimination. Complainant alleges discrimination
on the bases of sex (male), national origin (Hispanic) and age (over 40)
when on February 26, 2003, he was denied overtime when he refused to use
his personal vehicle. On February 11, 2004, an Administrative Judge (AJ)
issued a decision without a hearing, finding that there was no genuine
issue of material fact in dispute and concluded that complainant was
not discriminated against. Specifically, the AJ found that complainant
only established a prima facie case of national origin discrimination,
not of sex or age discrimination. Furthermore, the AJ found that the
agency presented a legitimate nondiscriminatory reason for its actions
which complainant failed to rebut. The agency, on February 23, 2004,
issued a decision adopting the AJ's decision. Complainant now appeals
that decision.
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 judgement procedures 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 of 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 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.
Assuming complainant has shown a prima facie case of national origin, sex,
and age discrimination, we find that the agency presented a legitimate
nondiscriminatory reason for denial of overtime that complainant failed
to rebut. The agency asserts that there were no vehicles available for
anyone working non-scheduled overtime on February 26, 2003. Complainant
has failed to rebut the agency's legitimate nondiscriminatory reason.
Therefore, we find that complainant has not shown, by preponderance of
the evidence, that he was denied overtime as a result of discrimination
on the bases of sex, national origin or age.
The agency's decision finding no discrimination 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
July 26, 2004
__________________
Date