Grag L. Wake, Sr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 28, 2005
01a51164 (E.E.O.C. Mar. 28, 2005)

01a51164

03-28-2005

Grag L. Wake, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Grag L. Wake, Sr. v. United States Postal Service

01A51164

March 28, 2005

.

Grag L. Wake, Sr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A51164

Agency No. 1J-461-0033-03

Hearing No. 240-2004-00126X

DECISION

Complainant initiated an appeal from the agency's final order, dated

October 27, 2004, concerning his equal employment opportunity (EEO)

complaint of unlawful employment discrimination. For the following

reasons, the Commission AFFIRMS the agency's final order.

The record reveals that complainant, a Mail Handler at the agency's

Processing and Distribution Facility, Kokomo, Indiana, filed a formal EEO

complaint on March 24, 2003, alleging that the agency had discriminated

against him on the bases of race (African-American), religion (Apostolic

Pentacostal) and sex (male)<1> when:

(1) On January 14, 2003, complainant's group leader position was

reposted; and

On February 16, 2003, complainant was required to work a designated

holiday.

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 AJ issued a decision, dated October 22,

2004, without a hearing, finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of race or sex 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. The AJ's decision incorporated the agency's statement of

undisputed facts submitted in support of its Motion for Findings and

Conclusions without a Hearing, dated October 1, 2004. The agency's

Motion explained that complainant's position for group leader was

reposted with days off changed to Tuesday and Wednesday, together

with all of the mail handler positions that were reposted to satisfy

a union grievance that complainant had filed, and also explained that

complainant was scheduled to work on February 16, 2003, only after all

junior mail handlers, not otherwise on regular non-schduled days off,

prime time annual leave or extended sick leave, were also scheduled

to work. Accordingly, the AJ found the evidence to be such, that a

reasonable fact-finder could not return a verdict for the complainant,

and that summary judgment in favor of the agency was appropriate. The

agency's final order implemented the AJ's 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 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.

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 find that the AJ's decision, incorporating the undisputed

facts, supplied by the agency, properly summarized the relevant facts

and referenced the appropriate regulations, policies, and laws. Further,

construing the evidence to be most favorable to complainant, we note that

complainant failed to present evidence that any of the agency's actions

were motivated by discriminatory animus toward complainant's race or sex.

We therefore AFFIRM the agency's final order finding no discrimination.

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

March 28, 2005

__________________

Date

1The record reflects that complainant added the basis of sex (male)

and effectively abandoned the basis of religion when he supplied his

affidavit during the investigation of his complaint.