0120091284
04-21-2009
Polo S. Capristo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Polo S. Capristo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091284
Agency No. 1F-946-0031-08
Hearing No. 550-2009-00069X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 9, 2009 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.
Complainant alleged that the agency discriminated against him in reprisal for prior EEO activity when:
a. on an unspecified date, he was taken off the clock for an incident which occurred on July 1, 2008;
b. on an unspecified date, he was issued a Letter of Warning for the incident occurring on July 1, 2008; and
c. on or about July 21, 2008, his request for a change of schedule was denied.
Following the investigation into her formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On October 10, 2008, the AJ issued a decision by summary judgment in favor of the agency. The agency fully implemented the AJ's decision in its final action.
The AJ found that, based on the evidence of record, complainant had not established a prima facie case of discrimination based on retaliation. The AJ further found that the agency nevertheless articulated legitimate, non-discriminatory reasons for its actions. Regarding claims a and b, the AJ noted that according to the Operations Manager (OM) and complainant's supervisor, complainant was neither taken off the clock for an incident which occurred on July 1, 2008 nor issued a Letter of Warning for the incident occurring on July 1, 2008. The AJ further noted that the evidence in the record indicates that complainant worked 8 hours on July 1, 2008. Regarding claim c, the AJ noted that according to OM, complainant's request for a change of schedule was denied due to operational reasons. The AJ also noted that the record reflects that OM had previously denied other employees' requests for a change of schedule. Finally, the AJ concluded that complainant did not prove, by a preponderance of the evidence, that the agency's proffered reasons for its action were a pretext for discrimination.
On appeal, complainant contends that the decision the AJ "sent to me indicates that all the information I sent in to have investigated was nothing more than speculation of mine. The letter of warning that you were not able to find because you say there was never one made and put on file. Here is a copy of my speculation of that letter. That you weren't able to find." In support of his assertions, complainant submitted a copy of his Letter of Warning dated April 30, 2008 for an incident which occurred on April 10, 2008.
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, 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.
Regarding complainant's appellate arguments, the Commission notes that the Letter of Warning provided by complainant address an incident occurring in April 2008, and is not related to any disciplinary action purportedly taken on July 1, 2008. Moreover, regarding being purportedly placed off the clock on July 1, 2008, the record contains an agency document reflecting that complainant worked an entire work day on July 1, 2008.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 21, 2009
__________________
Date
1 On appeal, complainant does not challenge a August 6, 2008 partial dismissal issued by the agency regarding other three claims (that he was discriminated against on the basis of reprisal for prior EEO activity when on April 10, 2008, he was taken off his bid assignment and given a different route; on April 16, 2008, he was followed on his route by management; and management exercises favoritism by not using drivers who like to huddle in one tractor). Therefore, we have not addressed these issues in our decision.
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0120091284
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091284