01a41394
07-06-2005
Michael S. Celentano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael S. Celentano v. United States Postal Service
01A41394
July 6, 2005
.
Michael S. Celentano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41394
Agency No. H0-0129-01
Hearing No. 100-2003-7353X
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, an Information Systems Specialist,
EAS-19, in the agency's Headquarters facility in Washington, D.C.,
filed a formal EEO complaint on October 4, 2001, alleging that the
agency discriminated against him on the bases of national origin
(Italian-American), sex (male), and reprisal for prior EEO activity when
management denied him early retirement through the agency's Voluntary
Early Retirement Authority (VERA) during the period November 2000 through
January 2001.
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.
In his decision, the AJ concurred with the agency's Motion for Decision
without a Hearing, finding that complainant failed to establish a
prima facie case of sex, national origin, or reprisal discrimination.
Specifically, the AJ found that complainant failed to show that any
similarly situated individuals, outside his protected classes, were
treated more favorably under similar circumstances.<1> The agency's
final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred in issuing a decision
without a hearing, and in adopting the agency's motion in its entirety.
Complainant further contends that the AJ failed to fully consider his
arguments, and he requests that the Commission reverse the AJ's decision
and remand the case for a hearing.
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. We concur with the AJ's finding that complainant
failed to establish a prima facie case of sex, national origin, or
reprisal discrimination. Although a female co-worker (CW1), outside
of complainant's protected classes, was granted an early retirement
effective June 1, 2001, we find that CW1 was not employed in the same
position as complainant, did not report to the same supervisor, and
her request for early retirement was not granted during the same time
period in which complainant made his retirement requests. (Report of
Investigation, page 4). The record also reflects that CW1 was granted
an early retirement because, unlike complainant, she declined a directed
reassignment and that her retirement was not approved through VERA.
(R.O.I., Affidavit B; Exhibit 3). Accordingly, we find that CW1 is not
similarly situated to complainant.
Further, we find that even assuming, arguendo, complainant established
a prima facie case of discrimination on all alleged bases, the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the record reflects that VERA was not being offered to the
employees in complainant's organization during the time period at issue,
as such early retirement opportunities are only offered under special
circumstances such as a major reduction in force, reorganization, or
transfer of functions. (R.O.I., Affidavit B; Declaration of Manager,
Corporate Personnel, dated August 11, 2003). Although, complainant
contends that CW1 was given a directed assignment simply as a means
for the agency to facilitate her early retirement, we find that even
assuming this contention is true, complainant has not proffered any
evidence, beyond mere conclusory assertion, that any agency action was
motivated by discriminatory animus toward his sex or national origin,
or reprisal for his prior protected activity. Accordingly, we concur
with the AJ's finding of no discrimination.
Finally, we note that although the AJ adopted the agency's statement
of facts in its entirety, as well as its analysis of the law, the
Commission has determined that the material facts are not in dispute,
and that complainant's claims were evaluated through appropriate legal
analysis in the Agency's Motion for Dismissal Without Hearing. Therefore,
we affirm the agency's final order.
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
July 6, 2005
__________________
Date
1 In the alternative, the AJ dismissed complainant's complaint,
pursuant to 29 C.F.R. � 1614.105(a)(1), for untimely EEO counselor
contact. However, because we are affirming the agency's finding of no
discrimination on the merits, it is unnecessary to address the issue
of untimeliness.