0120101108
08-31-2011
Lennell Hardney, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Lennell Hardney,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120101108
Hearing No. 440-2009-00019X
Agency No. 4J-600-0052-08
DECISION
Complainant filed an appeal from the Agency’s December 22, 2009
final order finding no discrimination with regard to his complaint.
29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
In his complaint, dated April 4, 2008, which was subsequently amended,
Complainant, a formal Agency employee, alleged discrimination in
retaliation when: (1) on December 4, 2007, he was placed in an off-duty
status for failure to observe safety rules; (2) on January 4, 2008,
he was removed from his employment; and (3) on January 14, 2008,
he was not selected for the position of Transportation Operations
Supervisor. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On December 7, 2009, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the
AJ’s decision.
ANALYSIS AND FINDINGS
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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that Complainant had established a
prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for the alleged incidents. At the relevant
time period, Complainant was employed as a Driving Safety Instructor
at the Carol Stream P&DC in Carol Stream, Illinois. With regard to
claim (1), Complainant’s supervisor stated that on December 4, 2007,
Complainant was instructed to administer the “End-of Training Road
Test” for operating a Long-Life Vehicle to a trainee. The supervisor
indicated that on that day, Complainant was observed leaving his postal
vehicle without turning off the ignition and removing the key, which was
a violation of the Agency’s policy. The supervisor stated that she
made the decision to place Complainant in an off-duty status, at issue,
until the investigation about the incident was completed.
With regard to claim (2), the AJ stated that the supervisor, with the
concurrence of her manager, issued Complainant the notice of removal
for his failure to comply with safety rules, the effective date to
be determined at a later time. Report of Investigation, Exhibit 4.
With regard to claim (3), the AJ noted that Complainant previously applied
for the supervisory position at issue and while the notice of removal was
pending, he was interviewed by a selecting official for that position.
Complainant however was not selected. A selecting official for that
position stated that he selected an individual who had been serving
as the acting supervisor and Complainant’s interview “showed he
was not prepared for the position as well as he had no past exhibited
performance.” Report of Investigation, Affidavit D. The selecting
official indicated that he did not know about Complainant’s removal at
the time of his selection decision, and he had no working relationship
with Complainant. Complainant’s supervisors indicated that they were
not involved with the foregoing selection process or aware of his applying
for that position.
Complainant also claimed that management retaliated against him because he
previously had contacted headquarters to lodge a complaint about safety
protocol without informing his management and because he previously took
sick leave from November 17, 2007, through December 3, 2007, after he
was denied his request for the day after Thanksgiving off from work.
The AJ however stated that the foregoing practices were not a protected
activity recognized by Title VII. AJ Decision at 7. After a review
of the record, we agree with the AJ that Complainant failed to rebut
the Agency’s legitimate, nondiscriminatory reasons for the alleged
incidents. Based on the foregoing, we find that Complainant has failed
to show that the Agency’s action was motivated by discrimination as
he alleged.
CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
8/31/11
__________________
Date
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0120101108
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101108