01990027
03-14-2002
John F. Bender, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John F. Bender v. United States Postal Service
01990027
03-14-02
.
John F. Bender,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01990027
Agency No. 4-I-530-0100-97
Hearing No. 260-98-7033X
DECISION
Complainant timely appeals from the agency's final decision of August
25, 1998. The appeal is accepted pursuant to 29 C.F.R. � 1614.405. The
appeal concerns his equal employment opportunity (EEO) complaint 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. Complainant alleges that he
was discriminated against because of his disability (unspecified back
problems) and in retaliation for his prior Title VII and Rehabilitation
Act activity when, on May 5, 1997, he was denied the opportunity to
qualify and compete for promotion to a higher-level Maintenance Mechanic
(MPE-7) position. For the following reasons, the Commission AFFIRMS the
agency's final decision of August 25, 1998.
The record reveals that complainant is a Custodial Laborer, PS-3,
at the agency's Milwaukee, Wisconsin facility. He filed a formal EEO
complaint with the agency on July 30, 1997, alleging that the agency
discriminated against him by determining that he was ineligible to
apply for consideration for promotion to a MPE-7 position. Complainant
previously had applied for a Maintenance Mechanic ( MPE-6) position,
but he failed to qualify for MPE-6. The exam he took for the MPE-6
position was the same test used for the MPE-7 position. When complainant
completed the process to qualify for the MPE-7 position and applied, he
was informed that his score was deemed ineligible. Complainant's Candidate
Supplemental Application was returned to him. The record further reveals
that the process governing the Maintenance Selection System (MSS) was
created nationally for all offices using the MSS. (Affidavit C, Exhibit
4) The agency's position is that complainant was not considered for
promotion because complainant had an ineligible rating on his in-craft
and in-service MPE-7 registers from the in-service examination. He was
not allowed to update his application prior to February 1997 because at
that time the agency had no in-service test update procedures. Revisions
were made to the maintenance selection process in 1997 to allow those
who had not applied previously to compete. It is the agency's position
that the procedures for the maintenance selection process were followed
and an offer has been made to allow the complainant to update his
application.<1> At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ).
On June 1, 1998, the AJ issued a decision, without a hearing, upon her
determination that there were no material facts requiring a hearing.
The AJ further found that it is undisputed that complainant was not
eligible for level 7 positions because he did not qualify for level 6. The
AJ found that the reasons articulated by the agency are not contradicted
by evidence in the record. The AJ found that the agency was adhering
to the procedures that govern promotion eligibility determinations for
all employees. The AJ found that complainant failed to demonstrate that
there were similarly situated employees not in his protected classes who
were treated differently than complainant under similar circumstances.<2>
The AJ determined that there were no material facts requiring a hearing.
She also found based on the record that the evidence does not show that
complainant has an impairment that substantially limits one or more of
his major life activities. The AJ further found that complainant did not
establish any inference of discrimination or show that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. The agency's final decision of August 25,
1998 implemented the AJ's decision. Complainant makes no new contentions
on appeal, and the agency requests that we affirm its final decision of
August 25, 1998.
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. 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 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. For purposes of analysis, we assume
that complainant is an individual with a disability. We agree with the
AJ's finding that an inference of discrimination does not arise in this
case because the record does not show that the agency acted on the basis
of complainant's claimed disability or in reprisal.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We also find that
the AJ's issuance of a decision without a hearing was appropriate.
Complainant failed to present evidence that any of the agency's actions
were in retaliation for his prior EEO activity or were motivated by
discriminatory animus based on disability. Thus, we discern no basis
to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final decision of August 25, 1998.
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
_03-14-02____________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
1 The record contains a March 25, 1998 letter to the AJ from the union
representative confirming that the agency offered to accept complainant's
request to update his qualifications.
2 Complainant references two employees for comparison. The record
shows that the two are not similarly situated to complainant. The first
comparative employee was not actually promoted. He had been placed in
a maintenance craft position due to a permanent limited-duty job offer
and he continued to be paid at his previous higher rate. The record
shows that the second employee properly applied for the MPE-7 job and
was found eligible through the MSS System.