0120061568
10-31-2007
Mitchell F. Hare, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mitchell F. Hare,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200615681
Hearing No. 340-2004-00529X
Agency No. 4F-900-0194-03
DECISION
Complainant filed this appeal from the December 2, 2005 agency
decision which implemented the September 22, 2005 decision of the EEOC
Administrative Judge (AJ) finding no discrimination.
In his complaint, complainant, an Automotive Mechanic, alleged that the
agency discriminated against him on the bases of race (African-American),
sex (male), religion (unspecified), and reprisal when: (1) on August 20,
2003, he was not selected for a Lead Mechanic position; (2) on unspecified
dates, he received less training than the two individuals selected for
the position; and (3) he was removed from a Lead Mechanic detail and
returned to his regular position.
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 AJ. Complainant requested a hearing. The AJ issued
a decision without a hearing (summary judgment) over the objection of
complainant.
In her decision finding no discrimination, the AJ concluded that
complainant's allegations of denial of training in 2002 and 2003 were
untimely. The AJ also found that the agency did not deny complainant
training which was available locally. The AJ found further that
complainant failed to refute the agency's evidence that his applications
for the position were incomplete through no fault of the agency and that
seniority was not a determining factor in making the selections. The AJ
also found that complainant failed to show that a Board was required
to make the selection and that the Board failed to convene to make the
selection. The AJ found that one of the two selectees was of the same
race as complainant, complainant had no prior EEO activity previous to
the instant complaint, and, further, that complainant was removed from
the detail because of the selection of permanent Lead Mechanics.
The Commission's regulations allow an AJ to issue a decision without a
hearing when the AJ 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a
hearing unless the AJ ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary.
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).
Complainant must initially establish a prima facie case by demonstrating
that complainant 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). Proof of a
prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. 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).
Complainant may establish a prima facie case of reprisal by showing that:
(1) complainant engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, complainant was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
In his affidavit, complainant stated that he had 15 years of experience
as an agency Mechanic and five years of experience at an automobile
dealership. Complainant stated that the two selectees were less qualified
and had less seniority than he did. He also stated that he was told
that he was not selected for the position because of a lack of funding
for training and that he had heard rumors that his application was not
complete. He further stated that there were no specialized requirements
for the position.
The record contains two affidavits from the Manager, Vehicle Maintenance
(MVM). The MVM stated that there were six applicants. He also stated
that three of the six had more seniority than complainant and two of
the three were Black. The MVM stated that three of the six did not make
the final interviews. He further stated that selections were made on a
"best qualified" basis and not on the basis of seniority. The MVM also
stated that one of the two selectees was Black and the other was Asian.
The MVM identified factors for selection for the position and noted
that complainant failed to demonstrate any of the requirements. The MVM
stated that a selecting board reviewed all applications for relevancy,
accuracy, and completeness and if the Form 991 was not completed pursuant
to instructions, the application was set aside. He further stated that
although he and the selecting board had pointed out deficiencies in
complainant's Form 991 and made comments or suggestions for improvement,
complainant had not availed himself of the help. The MVM stated that
there was an application committee which consisted of three agency
supervisors who made the selections for the position and that he was
not on the committee. The MVM also stated that he was informed that
complainant's Form 991 package was not complete and therefore he was
not considered. The MVM further stated that his decision to remove
complainant from the Lead Mechanic detail was because the selectees
had been selected and there was no need for complainant to fill a Lead
Mechanic position.
The record contains the affidavit of the Supervisor of Vehicle Maintenance
(SVM). The SVM stated that he served on the committee making the
selections for the Lead Mechanic positions. The SVM also identified
two other employees who served on the committee but stated that they
had retired. The SVM stated that complainant and two other individuals
were excluded from consideration for selection because they did not
properly complete their Forms 991. The SVM stated that the selectees
were the best qualified, with both demonstrating good computer skills
as well as certification or degrees obtained outside the agency.
Initially, the Commission notes that an AJ's decision to issue a decision
without a hearing pursuant is reviewed de novo.
Upon review, the Commission finds that there are no disputed issues of
material fact and therefore the grant of summary judgment was proper.
We find that complainant was not selected for the position because he
failed to submit a properly completed Form 991 and not for discriminatory
reasons. Complainant has not shown that the agency's reason for not
selecting him was mere pretext to hide unlawful discrimination or
retaliation. Further, the record reveals that one of the selectees
was of the same race as complainant and both were of the same sex.
The record was, in this case, sufficient for a fact finder to make
findings and conclusions regarding the ultimate issue of discrimination.
Regarding the alleged denial of training, the record does not contain any
evidence of training for which complainant applied and for which he was
denied within 45 days of the date of his initiating EEO Counselor contact.
Even assuming that complainant was denied training, complainant has failed
to establish that the denial of training was motivated by discriminatory
animus. Complainant also has not shown that the agency's asserted reason
for removing complainant from his Lead Mechanic detail was pretextual
or motivated by discrimination. We find that complainant has failed
to show by a preponderance of the evidence that the agency intended to
discriminate against him.
The agency's decision finding no discrimination is AFFIRMED.
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
October 31, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120061568
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036