0120081737
08-28-2008
Marty Holmes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marty Holmes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081737
Hearing No. 532-2006-00038X
Agency No. 4C-440-0335-05
DECISION
Complainant filed an appeal from the agency's January 24, 2007 final
order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a).
ISSUES PRESENTED
Whether complainant was discriminated against based on his disabilities
(right carpel tunnel syndrome, bilateral collateral ligament strain,
bilateral shoulder strain, and left lateral epicondylitis) when (1) he
was denied a reassignment to the maintenance craft on or after September
27, 2004, (2) on August 2, 2005, he was denied the opportunity to be
utilized as an acting supervisor (204-B), and (3) as of September 2,
2005, the agency's Shared Services unit did not forward his information
to the Office of Workers' Compensation Programs (OWCP) for leave buy
back and lost his paperwork.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a city carrier at the agency's New Market Station facility in Canton,
Ohio.
On November 4, 2005, he filed an EEO complaint alleging, in relevant part,
the above issues. At the conclusion of the investigation, complainant
was provided with a copy of the report of investigation and notice
of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Over the complainant's
objections, the AJ granted the agency's June 27, 2006 motion for a
decision without a hearing; and issued a decision without a hearing on
January 16, 2007, finding no discrimination which the agency adopted in
its final order.
Regarding claim 1, complainant wrote that he "filed' for a reassignment
to the maintenance craft on September 27, 2004, but added he was told
he would get assistance in completing an application form and this did
not occur, making unclear whether he applied then. The record reflects
that comparison 1 (carrier) in writing requested reassignment to the
maintenance craft on April 21, 2003, September 5, 2003, February 9, 2004,
and April 1, 2004. (Report of Investigation, ROI, Exh. 4; Affid. G).
A custodial vacancy occurred on March 21, 2005, at which time eligible
candidates could be considered. The AJ's decision referenced the
statement of human resources specialist 1 that reassignment priority,
in relevant part, is set by the order date of the request, and computer
reports from July 2004 and April 2005 did not include a request for
reassignment by complainant. (ROI, Exh. G). Comparison 1 was reassigned
to the maintenance craft as a custodian effective October 15, 2005.
Regarding claim 2, complainant averred that he requested acting
supervisory opportunities three times, most recently in July 2005,
but did not state who he asked. According to the manager of customer
service, complainant told him that he would like to be a 204-B and
apply for postmaster, but they did not talk any more about the 204-B
matter because complainant was more concerned about the postmaster job.
He told complainant how to apply and gave him an application form.
The manager stated that if complainant asked about being a 204-B again,
he would have rejected the request because of his poor sick leave and
safety record. The AJ's decision referenced this manager's statement.
Regarding claim 3, the record reflects that complainant initially
misdirected his buy back application by filing it directly with OWCP,
rather than the agency. Thereafter on October 30, 2003, the agency's
Shared Services unit requested leave buy back paperwork from complainant.
According to human resources specialist 2, complainant did not submit it
until April 2004. (ROI, Affid. E). The record contains paperwork dated
in April 2004. (ROI, Exh. 6, pages 25, 27). Complainant generally
claimed that he repeatedly submitted paperwork, which Shared Services
would lose or misplace. The contains leave buy back paperwork by
complainant dated November 2003, but it has different figures, and we are
unable to discern if it regards the same buy back period. On appeal,
complainant submits a copy of the November 2003 paperwork with the
notation that he was given the wrong address. The record reflects that
the agency then delayed for some months before submitting it to OWCP,
and then, after soliciting more information from the parties, OWCP denied
almost all the requested leave buy back request for substantive reasons.
(ROI, Exh. 6, pages 10-11, Agency Exh. 7).
The AJ's decision found that complainant presented no evidence showing
the complained of actions occurred under circumstances giving rise to
an inference of disability discrimination, and the agency articulated
legitimate, nondiscriminatory reasons for all its actions. It found
no discrimination.
CONTENTIONS ON APPEAL
Regarding the requested reassignment to the maintenance craft, complainant
submits correspondence showing that he made previous requests. He submits
a September 18, 2002, letter by the Plant Manager stating he received
complainant's transfer request, and would forward it to human resources,
which handles such requests. Complainant asks why human resources did
not receive the request. Complainant also submits November 13, 2003,
letter by the Maintenance Manager acknowledging receipt of complainant's
transfer request, and instructing him to direct it to the human resources
office. Regarding not being assigned as a 204-B, complainant states that
comparison employee 2 had more accidents than him, and submits a computer
generated report that she was involved in two vehicle collisions in March
2002 and March 2004. Complainant argues that the agency is responsible
for OWCP denying his leave buy back request. In opposition to the appeal,
the agency generally argues that the AJ's decision should be affirmed.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999) (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A.
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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). 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.
Based on a review of the record, we find that the AJ properly issued
a decision without a hearing. There are no genuine issues of material
fact in dispute.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We agree with the AJ's decision that complainant failed to prove
disability discrimination.1 Complainant submits proof that he requested
reassignment to the maintenance craft in 2002 and 2003. However,
the record shows that the 2002 request would no longer be active
by the time comparison 1's vacancy opened (ROI, Affid. B, page 5).
In response to the 2003 request, complainant was told to direct it to
the human resources office. The record does not show that he did so.
The manager of customer service explained that he did not take action on
complainant's request to be a 204-B because when he raised it, he was
more concerned about learning how to apply for postmaster and did not
mention it again. Complainant does not rebut this. Moreover, the manager
stated that had he taken action, he would have rejected the reassignment
request because of complainant's poor safety and sick leave record.
Complainant contends that comparison 2 had a poor safety record, pointing
to two vehicle accidents. However, the record does not indicate fault,
and the customer service manager stated complainant's accidents were
considered at fault. Finally, while there was some delay in the agency
submitting complainant's leave buy back information to OWCP, we agree
with the AJ's assessment that the agency attempted to rectify the matter
and contains no indication this was due to complainant's disabilities.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the finding
of no discrimination.
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 28, 2008
__________________
Date
1 For purposes of analysis only, we assume without finding that
complainant is an individual with a disability.
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0120081737
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081737