0120082094
08-05-2008
Luis M. Mejia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Luis M. Mejia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082094
Agency No. 4F-926-0149-06
Hearing No. 480-2007-00012X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 25, 2008 final action 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.
During the relevant time, complainant was employed as a Sales and
Services Associate, PS-05, at the agency's University Station in Irvine,
California.
On May 16, 2006, complainant initiated EEO contact. Informal efforts
to resolve his concerns were unsuccessful.
On June 27, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination on the bases of race (Hispanic-Dominican), color (Black)
and in reprisal for prior EEO activity when:
(1) on May 16, 2005 and ongoing, he was denied overtime;
(2) on May 9 and 12, 2006, the Station Manager screamed at him;
(3) on May 16, 2006, he was issued a Letter of Warning (LOW) for failure
to follow instructions;
(4) on June 7, 2006, he was accused of screaming at his supervisor;
(5) on June 9, 2006, he was accused of leaving a bottle of wine at work;
and
(6) on September 25, 2006, he was accused of taking money from his cash
drawer.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ).
On March 13, 2008, the AJ issued a decision without a hearing. Therein,
the AJ dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2) on the
grounds of untimely EEO Counselor. The AJ determined that complainant's
initial EEO contact occurred on May 16, 2006, which it found to be
beyond the 45-day limitation period. The AJ further determined that
complainant had or should have had reasonable suspicion of unlawful
employment discrimination prior to his May 16, 2006 EEO contact.
The AJ further dismissed the portion of claim (2) concerning the May
12, 2006 incident and claims (4) through (6) pursuant to 29 C.F.R. �
1614.107(a)(5) on the grounds that complainant alleged that proposed
agency actions to be discriminatory. The AJ determined that the record
indicated that complainant did not suffer adverse harm because the agency
did not take a concrete personnel action against him. Specifically, the
AJ noted that two investigations were conducted concerning complainant's
claims (a) that his supervisor screamed at him on May 9, 2006, when he was
accused of leaving a bottle of wine at work and (b) when he was accused
of taking money from his cash drawer, but that no discipline was issued.
The AJ then proceeded to address the portion of claim (2) concerning
the May 9, 2006 incident and claim (3) on the merits, finding no
discrimination. Therein, the AJ determined that complainant did not
establish a prima facie case of national origin, color and reprisal
discrimination because complainant did not show that he was treated
differently than similarly situated individuals outside of his protected
classes.1 The AJ nevertheless found that the agency articulated
legitimate, nondiscriminatory reasons for its action which complainant
failed to show were a pretext for discrimination.
Regarding the harassment claim, the AJ found that complainant failed to
prove he was subjected to harassment sufficiently severe or pervasive
so as to render his work environment hostile.
The AJ noted that the Station Manager (SM) he denied screaming at
complainant on May 9, 2006 (portion of claim (2)). The SM further stated
that on May 16, 2006, he was the deciding official to issue complainant a
LOW for failure to follow instructions (claim (3)). The record reflects
that on May 9, 2006, complainant was observed parking his personal vehicle
in an area which he was previously instructed not to park approximately
one week earlier. The SM further stated that complainant "had been
told not to park in the area where he was parked. I asked him why he
was parked there. He stated he was just leaving." The SM stated that
he had disciplined other employees by issuing them a LOW for failure
to follow instructions. The SM also stated that complainant's national
origin and prior protected activity were not factors in his decision to
issue him a LOW.
On February 25, 2008, the agency issued a final action implementing the
AJ's dismissal of the portion of claim (2) concerning the May 16, 2006
incident and claims (1) and (4) through (6), and finding no discrimination
regarding the portion of claim (2) concerning the May 9, 2006 incident
and claim (3).
ANALYSIS
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a 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.
AJ's dismissal of claim (1)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The AJ properly dismissed claim (1) on the grounds of untimely EEO
Counselor contact. The last alleged discriminatory event occurred on
May 16, 2005, but that complainant did not initiate contact with an
EEO Counselor until May 16, 2006 which was beyond the forty-five (45)
day limitation period.
The Commission has found that because the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. United States Postal Service, EEOC Request No. 0590065
(March 29, 1990). The Commission finds that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
at the time of the alleged discriminatory event, and that he should have
contacted the EEO office within forty-five days. Complainant has failed
to provide sufficient justification for extending or tolling the time
limitation.
AJ's dismissal of the portion of claim (2) concerning the May 16, 2006
incident and claims (4) through (6)
The AJ dismissed the portion of claim (2) concerning the May 16, incident
and claims (4) through (6) pursuant to 29 C.F.R. � 1614.107(a)(5)
on the ground that complainant alleged a proposed agency action to
be discriminatory. The AJ determined that the record indicates that
complainant did not suffer adverse harm because the agency did not take a
concrete personnel action against him. Specifically, the AJ noted that
two investigations were conducted concerning complainant's claims (a)
that his supervisor screamed at him on May 9, 2006, when he was accused
of leaving a bottle of wine at work; and (b) when he was accused of
taking money from his cash drawer, but that no discipline was issued.
Upon review, we find that the matters raised in a portion of claim (2)
and claims (4) through (6) address proposed agency actions, and there
is no evidence to support a finding that the proposed actions were ever
implemented.
AJ's finding of no discrimination regarding the portion of claim (2)
concerning the May 9, 2006 incident and claim (3)
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions as discussed above. Complainant
has not shown that the agency's articulated reasons were a pretext
for discrimination. Therefore, we find that the AJ properly found no
discrimination regarding the portion of claim (2) concerning the May 9,
2006 incident and claim (3).
Accordingly, the agency's final action implementing the AJ's dismissal of
claim (1), the portion of claim (2) concerning the May 16, 2006 incident,
and claims (4) through (6), and the finding of no discrimination regarding
the portion of claim (2) concerning the May 9, 2006 incident and claim
(3) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 5, 2008
Date
1 The AJ noted that in his complaint, complainant listed his race as
"Hispanic-Dominican." The AJ noted, however, that the Commission
recognizes the term "Hispanic" to be an indication of national origin,
not race.
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2
0120082094
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120082094