01A30736
08-14-2003
Louie Guzman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Louie Guzman v. United States Postal Service
01A30736
08-14-03
.
Louie Guzman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30736
Agency No. 4F-926-0140-98
Hearing No. 340-99-3105X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final order.
The record reveals that complainant, a Letter Carrier at the agency's
Glendora, California facility, filed a formal EEO complaint on June 25,
1998, alleging that the agency had discriminated against him on the bases
of national origin (Hispanic), sex (male) and reprisal for prior EEO
activity when he was issued a Notice of Removal, effective February 24,
1998, charging him with violation of his Last Chance Agreement / Absent
Without Official Leave (AWOL).
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ concluded that complainant failed
to establish a prima facie case of national origin discrimination
and reprisal. The AJ did not mention complainant's allegation of sex
based discrimination because, during his deposition, the complainant
seemed to withdraw this claim.<1> Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees
not in complainant's protected classes were treated differently under
similar circumstances. The AJ also concluded that complainant failed
to establish a prima facie case of reprisal due to the undisputed fact
that complainant had never been previously engaged in prior EEO activity.
The agency's final order implemented the AJ's decision.
On appeal, complainant restates his argument that the agency's policy
for incarceration not being an acceptable excuse for absence was applied
differently among employees. In response, the agency restates the
position it took in its FAD, and requests that we affirm its final order.
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 judgement procedure set forth in Rule 56 of the Federal
Rules of Civil Procedure. The United States 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 the
court's role is not to weigh the evidence, but rather to determine whether
there are genuine issues of fact 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). 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.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Complainant missed work for three days because he was incarcerated.
He stated that he did not have permission for leave from work. The
agency charged him as AWOL. The agency stated that because complainant
was AWOL, which violated the terms of his Last Chance Agreement, the
letter of removal was appropriate. Complainant showed that a similarly
situated employee, not of complainant's protected class (SE) was absent
from work for incarceration and charged with Leave Without Pay (LWOP).
SE was not terminated. However, complainant acknowledged that SE had
permission for that leave and was not under a Last Chance Agreement.
Complainant also acknowledged that the agency requires its employees to
obtain permission for any leave taken. For these reasons, SE is not
a similarly situated employee and does not establish pretext for the
agency's actions. Further, construing the evidence to be most favorable
to complainant, we note that complainant failed to present any other
evidence that the agency's actions were motivated by discriminatory
animus toward complainant's protected class. We also agree with the
AJ's finding that complainant failed to establish a prima facie case
of reprisal due to the undisputed fact that complainant had never been
previously engaged in prior EEO activity.
After a careful review of the record, the Commission finds that grant of
summary judgment 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.
We therefore AFFIRM the agency's final order of no discrimination on
the bases of national origin or reprisal.
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
___08-14-03_______________
Date
1Complainant never formally stated that he withdrew sex as a basis
for this action. During his deposition, when asked if he believed
if his supervisors disliked him because of his sex, he responded,
�not that I'm aware of.� When asked if he was alleging that he was
discriminated against based on his sex, he responded, �I am not � I
don't know.� The questioning attorney also asked, �So it is not the
sex so much, it is � the nationality is the basis of your complaint?�
Complainant responded �yes.� Assuming arguendo that complainant did
not intend to withdraw sex as a basis, complainant did not establish a
prima facie case of sex discrimination because he provided no evidence
of similarly situated female employees.