0120064894
05-15-2008
Joseph J. Renn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph J. Renn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200648941
Agency No. 4C080003305
Hearing No. 530200600037x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 2, 2006, 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.
Until his removal, complainant worked as a letter carrier at the agency's
Magnolia, New Jersey facility. He claimed discrimination based on
race (Caucasian-interracial relationship)2 and in reprisal for prior
protected EEO activity when he received a Notice of Removal on May 2,
2005 (effective June 6, 2005), for failure to follow directions/properly
perform duties. Following an investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On June 19, 2006,
the AJ issued a decision without a hearing, finding that the agency did
not discriminate against complainant.3
The AJ held that complainant did not establish a prima facie case
of discrimination on either bases, in that he did not present a
"scintilla of evidence" to raise an inference of discrimination.4 AJ,
2nd page. She concluded, further, that even if he had done so, the agency
articulated legitimate, nondiscriminatory reasons for its actions and that
complainant did not demonstrate pretext. The AJ found that the agency
issued the instant Notice of removal, because complainant continued to
perform his casing duties at a "extremely slow pace," notwithstanding
the agency's and the union's numerous attempts to assist him. Id.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and 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). The AJ may properly issue a decision
without 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. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision. The AJ's issuance
of a decision without a hearing was appropriate because there are no
genuine issues of material fact in dispute, and the preponderance of
the evidence of record does not establish that discrimination occurred.
Accordingly, the agency's decision 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
__5/15/2008________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Complainant's fianc�e (now wife) is African American-Puerto Rican.
3 On June 14, 2006, the AJ affirmed the agency's dismissal on October
5, 2005, of ten issues for untimely EEO contact pursuant to 29 C.F.R. �
1614.107(a)(2). The Commission agrees with the AJ's decision and affirms
the dismissal.
4 Complainant's claim of reprisal is based on a letter written to his
union on October 18, 2004. The AJ found that this letter did not allege
discrimination, nor was his supervisor aware of it, and he failed to
establish a prima facie case of reprisal. In addition, complainant cannot
demonstrate a nexus based on temporal proximity. See Clark County School
District v. Breeden, 532 U.S. 268 (2001); EEOC Compliance Manual, Section
8, Retaliation, pp. 8-18 (to support a finding of unlawful retaliation,
there must be proof that the acting agency official(s) took the action
at issue because of complainant's prior protected activity and sought
to deter complainant or others).
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0120064894
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064894