John E. Cipollini, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 7, 2007
0120061408 (E.E.O.C. May. 7, 2007)

0120061408

05-07-2007

John E. Cipollini, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John E. Cipollini,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120061408

Hearing Nos. 160-2005-000422X, 160-2005-00511X

Agency Nos. 4B-028-0027-04, 4B-028-0004-05

DECISION1

On December 24, 2005, complainant filed an appeal from the agency's

November 23, 2005, final order concerning his equal employment opportunity

(EEO) complaint alleging 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 deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission affirms the agency's final

order.

ISSUES PRESENTED

The issues presented herein are:

Agency No. 4B-028-0027-04

Whether the agency discriminated against complainant on the bases of

national origin (Italian-American) and disability (stuttering) when:

(1) since August 2003 and continuing, he has been subject to ongoing

harassment, intolerable working conditions, threats and

intimidation;2

(2) on December 29, 2003, he was issued a 14-day No Time Off Suspension,

charging him with failure to perform his duties in a satisfactory manner;

(3) on December 31, 2003, he was (a) given a pre-disciplinary interview;

(b) escorted out of the postal facility, and (c) instructed to provide

medical documentation in order to return to work; and

(4) on January 17, 2004, he was issued a Notice of Removal, charging

him with unacceptable conduct and failure to be regular in attendance

(reduced to a 14 Day suspension).

Agency No. 4B-028-0004-05

Whether the agency discriminated against complainant on the bases of

disability (stuttering, anxiety/depression) and reprisal for prior EEO

activity when:

(5) on September 14, 2004, he was issued a 14 Day Notice of Suspension

charging him with failure to be regular in attendance;

(6) on October 18, 2004, he was given a Pre-Disciplinary Interview

(PDI);

(7) on October 26, 2004, he was sent correspondence advising him of his

employment status options;

(8) on November 24, 2004, he was issued a Notice of Termination

(non-disciplinary) effective December 31, 2004; and

(9) effective December 11, 2004, he was made an unassigned regular

employee and his bid assignment was posted for bid.

BACKGROUND

During the relevant time, complainant worked as a letter carrier at the

agency's Mount Pleasant Station in New Bedford, Massachusetts. On March

22, 2004, complainant filed a formal complaint, Agency No. 4B-028-0027-04

(EEO-1), and thereafter, on December 10, 2004, he filed a second formal

complaint, Agency No. 4B-028-0004-05 (EEO-2). At the conclusion of

the agency's investigation of each of his complaints, complainant was

provided with a copy of the reports of investigation and notices of his

right to request a hearing before an EEOC Administrative Judge (AJ).

Complainant timely requested a hearing in EEO-1 on April 8, 2005,

and in EEO-2 on June 7, 2005. On October 20, 2005, the agency filed

a motion for a decision without a hearing in both EEO-1 and EEO-2,

and when complainant did not submit an objection, the AJ assigned to

the case consolidated the two complaints and issued a decision without

a hearing on November 18, 2005.

The AJ found that the agency's motion correctly set forth the material

facts and applicable law, and she thereby incorporated them. Said facts

are as follows: In August 2003, complainant, while serving as a union

steward, was preparing to attend an upcoming Labor-Management meeting

when he discovered that information he had requested in connection

with his union steward duties had been thrown away by a supervisor

(MP). MP then informed complainant that he was not permitted to

attend the Labor-Management meeting. Thereafter, on August 7, 2003,

complainant engaged another supervisor (RF) in a conversation about the

matter when then-Acting Station Manager (MR) directed complainant to

return to his case. In response, complainant informed MR that he would

comply with the instruction when he finished his conversation with RF.

MR repeated his instruction, and complainant responded as he did before.

Complainant thereafter returned to his case, and on August 20, 2003,

MR issued complainant a letter of warning (LOW). Complainant also

asserted that he was subjected to unwarranted scrutiny, including,

for example, criticism of how he held mail, walked in the office, and

handled packages. He noted that he was issued a 7-day (no time off)

suspension for failing to lock his vehicle as well. (Claim 1)

Complainant also alleged that the agency issued him a suspension because,

on December 24, 2003, a supervisor (RP) found that complainant failed to

display his postal identification badge. The record reveals that a week

prior to this incident, RP counseled complainant to wear his badge at

all times. When confronted on December 24, complainant told RP that he

had left his badge at home, and that RP was being "nit picky."3 (Claim 2)

On December 29, 2003, complainant decided to confront RP about

the suspension, and expressed his desire to meet RP "off the clock"

because he was "too limited in what he could say during the meeting."

The following day the Station Manager (JF) held a pre-disciplinary meeting

with complainant. When complainant was asked if he could remain calm,

complainant responded, "they might not see calm."4 JF and RP advised

complainant that he could not continue to work, and complainant was

escorted from the building. (Claim 3)

On January 17, 2004, the agency issued complainant a Notice of Removal

for his remarks to RP about meeting with him off the clock and his

remarks during the December 30, 2003 meeting. The Notice was reduced

to a 14-day suspension. (Claim 4)

On September 14, 2004, the agency issued complainant a 14-day suspension

for failure to be regular in attendance. Specifically, the record reveals

that complainant had not reported to work since March 2004 and had been

in a Leave Without Pay (LWOP) status following the denial of his Office

of Workers' Compensation Programs (OWCP) claim in July 2004. At the time

of the suspension, complainant's health care provider indicated that

complainant would be unable to "ever" return to work with the agency.

At the time of the aforesaid suspension, complainant's disciplinary

record included: (1) a Letter of Warning for Failure to Be Regular in

Attendance; and (2) a 7-Day Suspension for Unacceptable Conduct and

Failure to Be Regular in Attendance. (Claim 5)

On October 18, 2004, the agency provided complainant with a PDI to

discuss his ongoing absence and whether a removal notice would be issued.

Complainant maintained that the management officials involved were hostile

and did not wish to hear about the collective-bargaining agreement (CBA)

or the Employee and Labor Relations Manual (ELM) requirements. (Claim 6)

On October 26, 2004, a supervisor (DS) sent complainant an "Employment

Options" letter regarding his employment status.5 Therein, he noted

that complainant had been in a LWOP status since June 2004, and that

complainant's health care provider had opined that it was a "reasonable

expectation" that complainant would never return to work with the agency.

DS therefore informed complainant that the he had the option of pursuing

disability retirement and/or other retirement, if eligible. (Claim 7)

On November 24, 2004, the agency issued complainant a non-disciplinary

notice of separation, effective December 31, 2004. Therein, DS informed

complainant that he was being administratively separated from the agency

because his health care provider had opined "that it is reasonable

to conclude that [complainant was] unlikely ever to return to postal

service employment." At the time of the notice, complainant had been

in LWOP Status for over 5 months and had submitted documentation from

his psychologist, indicating that his return to work with the agency

was unlikely. (Claim 8)

Thereafter, on December 10, 2004, the agency posted complainant's bid

assignment. According to the agency, when a regular letter carrier was

temporarily unable to work in his regular assignment due to illness or

injury, management could request that the letter carrier provide medical

certification indicating that he would be able to perform the duties of

his bid-for position within a certain time period. If he did not provide

medical documentation or could not perform the duties, the regular letter

carrier had to relinquish his bid and become an "unassigned regular."

Complainant became an unassigned regular employee pursuant to the

aforesaid rule. (Claim 9)

Based upon the aforesaid facts, the AJ issued a decision, finding no

discrimination. The AJ determined that complainant failed to establish

a prima facie case of disability discrimination in that he could not

show that either of his impairments substantially limited a major life

activity. She further found that complainant failed to establish a

prima facie case of harassment based upon national origin or reprisal

because he failed to establish a nexus between his protected class(es)

and the claimed harassment. She reasoned that, even if complainant had

established a prima facie case of discrimination on any of the alleged

bases, the agency articulated legitimate nondiscriminatory reasons for

its actions. She noted that complained neither denied that he committed

the infractions for which he was charged, nor did he present evidence

to challenge the agency's reasons. The agency subsequently issued a

final order adopting the AJ's finding that complainant failed to prove

that he was subjected to discrimination as alleged.

On appeal, complainant contends, among other things, that, due to his

stuttering, he is disabled in speaking, and due to his depression/anxiety,

he is limited in his ability to work, interact socially, and concentrate.

He further asserts that the agency subjected him to ongoing harassment

when it took continued unsupported disciplinary action. He notes in this

regard that the majority of his protestations were based on legitimate

perception recognized through grievance procedure. Moreover, he argues

that it was the agency's harassment that resulted in his absence.

Finally, he asserts that he has established that the agency acted in

reprisal, as the agency acted to harass him after he participated in

EEO activity and the grievance process.

In response, the agency contends that complainant's appeal should be

denied because he failed to identify any genuine dispute of material fact

or show that the AJ committed an error of law. It further argues that

the question of whether complainant is an individual with a disability

is not material to the outcome of the case.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ's legal and

factual conclusions, and the agency's final order adopting them, de novo.

See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from

an agency's final action shall be based on a de novo review . . .");

see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,

1999) (providing that an administrative judge's "decision to issue a

decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will

be reviewed de novo").

We must first determine whether it was appropriate for the AJ to have

issued a decision without a hearing on this record. 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, issuing

a decision without holding a hearing is not appropriate. In the context

of an administrative proceeding, an AJ may properly consider issuing a

decision without holding 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).

After a careful review of the record, the Commission finds that the AJ's

decision referenced the appropriate regulations, policies, and laws.

Moreover, we find that the AJ properly issued a decision without a hearing

because complainant has failed to show that a genuine issue of material

fact exists. Although complainant asserts that he is an individual with

a disability,6 we find that even if we assume that he is, the agency

has provided legitimate nondiscriminatory reasons for its actions that

complainant has failed to show are pretextual. Moreover, to the extent

that complainant alleges that he was subjected to harassment/hostile work

environment, he has not established that agency's actions were taken

due to his disability or national origin, or in reprisal for prior EEO

activity. In so finding, we note that we have considered the background

evidence provided in complainant's Memorandum to Senior EEO Complaints

Investigator, dated April 21, 2004. See fn. 2, supra. Complainant also

asserts that it was the agency's harassment that resulted in his absence.

We find, however, that while complainant and management interacted poorly,

the record is devoid of evidence that discriminatory animus based upon

complainant's protected classes was the reason for the strained relations.

For the foregoing reason, we concur with the AJ's determination and find

that summary judgment was appropriate in this case.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, 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

__5/07/07_________________

Date

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

above referenced appeal number.

2 After complainant's pre-complaint counseling, he raised additional

incidents with the agency. See Memorandum to Senior EEO Complaints

Investigator, dated April 21, 2004. These incidents were considered part

of complainant's claim of hostile work environment, and included: (1) on

January 30, 2004, the Postmaster acted impatiently when complainant had

difficulty speaking, and the Postmaster told complainant that he would

be standing in a breadline; (2) on February 5, 2004, while discussing

the office times at Mount Pleasant, the Postmaster said the problem is

with the people; (3) on February 24, 2004, when complainant asked for a

transfer, the Postmaster said he would not wish complainant upon anybody;

(4) on February 2, 2004, the Postmaster mailed complainant a letter that

was factually incorrect; and (5) on April 4, 2004, the Postmaster told

complainant over the phone that he was glad complainant was not at work,

it was nice not having complainant there, and the workplace atmosphere

has been better without him. On appeal, complainant requests that the

enumerated incidents be remanded for investigation. We find that they

are properly considered as background evidence as part of claim (1).

3 Complainant maintained that another letter carrier, who did not have

his badge, was given a visitor's badge. The record does not indicate

that the other employee had been directed by RP on a prior occasion to

wear his badge.

4 Complainant stated that he intended to express that he would raise

his voice.

5 The letter was prepared by the agency's Labor Relations Office for

DS's signature.

6 We assume without finding, for the purposes of analysis only, that

complainant is an individual with a disability as alleged.

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0120061408

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

8

0120061408