01a42770
03-10-2005
John E. Luckey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John E. Luckey v. United States Postal Service
01A42770
March 10, 2005
.
John E. Luckey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42770
Agency Nos. 4G-770-0492-02, 4G-770-0063-03
Hearing No. 330-2004-00003X
DECISION
Complainant filed this appeal with the Commission from the March 1,
2004 agency decision implementing the February 24, 2004 decision of the
EEOC Administrative Judge (AJ) which found no discrimination in Agency
No. 4G-770-0063-03 and which dismissed Agency No. 4G-770-0492-02 for
failure to contact an EEO Counselor in a timely manner pursuant to 29
C.F.R. � 1614.107(a)(2).
Complainant filed two complaints which were consolidated by the AJ.
In Agency No. 4G-770-0492-02, complainant alleged that he was
discriminated against on the bases of race (Caucasian), sex (male),
and age (D.O.B. January 7, 1945) when his request for a special
route inspection was denied and when he returned from vacation on
August 16, 2002, he learned that three routes had been cut. In Agency
No. 4G-770-0063-03, complainant alleged that he was discriminated against
on the bases of race (Caucasian), sex (male), age (D.O.B. January 7,
1945), and reprisal when: (1) on or about October 3, 2002, complainant's
request for overtime was denied and complainant was subjected to
harassment because his overtime requests were either denied or reduced
and other carriers were instructed to "PM case" complainant's route but
not other routes; and (2) on October 15, 2002, complainant's supervisor
came out on complainant's route and harassed complainant on several
occasions and changed complainant's reporting time.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing (summary judgment).
Agency No. 4G-770-0492-02
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive
facts" standard) to determine when the forty-five (45) day limitation
period is triggered. See Ball v. United States Postal Service, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitations period is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent. EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides
that an agency shall dismiss a complaint that fails to comply with the
applicable time limits contained in � 1614.105.
Regarding Agency No. 4G-770-0492-02, the AJ noted that during a prehearing
conference on February 3, 2004, she had notified the parties that the
complaint was being dismissed on untimeliness grounds. In the decision,
the AJ noted that in his informal complaint, complainant alleged that
the discrimination occurred on May 16, 2002, and that complainant did
not initiate contact with an EEO Counselor until July 25, 2002. The AJ
also noted that while complainant later alleged that the discrimination
occurred on August 16, 2002, the August 16, 2002 date would have occurred
after the July 25, 2002 contact. The AJ also stated that because the
claim was untimely, she would not address the issue of whether or not
discrimination occurred in Agency No. 4G-770-0492-02 .
The EEO Counselor's Report reveals that complainant contacted an EEO
Counselor on July 25, 2002. Complainant's September 21, 2002 complaint
in Agency No. 4G-770-0492-02 reflects that he alleged that he was
discriminated against on May 16, 2002, when his request for the special
route inspection was denied and that when he returned from vacation, he
discovered that three other routes were cut and that his route was not
inspected, adjusted or counted. Although complainant later asserted that
the denial of the route inspection occurred in August 2002, he admitted
in a deposition on December 18, 2003, that the date of incident regarding
the route inspection was May 16, 2002. Therefore, the Commission finds
that the correct incident date is May 16, 2002.
The Commission finds that complainant did not initiate EEO Counselor
contact until July 25, 2002, for alleged discrimination which occurred
on May 16, 2002. The Commission finds that complainant should have
reasonably suspected discrimination on May 16, 2002. We find therefore
that the contact was untimely because it was beyond the 45 days required
for timely EEO Counselor contact and complainant has not provided adequate
justification to extend the time limitation period. Accordingly, the
dismissal of Agency No. 4G-770-0492-02 was proper pursuant to 29 C.F.R. �
1614.107(a)(2).
Agency No. 4G-770-0063-03
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. See 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.
In Agency No. 4G-770-0063-03, the AJ concluded that even assuming
that complainant had established a prima facie case of discrimination,
complainant had failed to show that the agency's reasons for denying his
auxiliary/overtime requests, authorizing "PM casing" of his route, and
observing complainant on his route were mere pretext for discrimination.
The AJ found that complainant was observed on numerous occasions on the
street not following procedures and that complainant's volume of mail
did not justify overtime. The AJ also found that complainant's route
was "PM cased" because of excessive volume and that management had the
authority to instruct carriers to "PM case" routes with excessive volume.
After a careful review of the record, the Commission finds that grant
of summary judgment in Agency No. 4G-770-0063-03 was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. The Commission notes also that the
record reveals that complainant's requests for overtime were denied
because of his poor performance, that complainant was observed on his
route because of repeated requests for overtime, and complainant's route
was "PM cased" to prevent delay in mail delivery.
The agency's decision dismissing Agency No. 4G-770-0492-02 and finding
no discrimination in 4G-770-0063-03 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
March 10, 2005
__________________
Date