01a60870_r
04-06-2006
Ramon C. Navarro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ramon C. Navarro v. United States Postal Service
01A60870
April 6, 2006
.
Ramon C. Navarro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60870
Agency No. 4G-752-0343-04
Hearing No. 310-2005-00350X
DECISION
Complainant timely initiated an appeal from the agency's final action
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.
During the relevant time, complainant was employed as a City Mail Carrier,
at the agency's Brook Hollow Station in Dallas, Texas.
On August 20, 2004, complainant initiated EEO Counselor contact and
subsequently filed a formal complaint on November 1, 2004. Therein,
complainant claimed that he was discriminated on the bases of national
origin (Hispanic) and in reprisal for prior EEO activity when:
(1) on July 27, 2004, he was accused of hitting a co-worker in the
groin and placed off the clock and subsequently he received a Letter of
Warning - Unsatisfactory Work Performance/Conduct Unbecoming;
(2) on February 6, 2002, his co-worker swung a door in a man's face to
keep him out of a meeting where nothing was recorded;
(3) on February 6, 2002, he filed an EEO complaint, 4G-752-0137-03,
which the investigator found no wrong doing and he had requested that
the complaint be investigated in another district; and
(4) on June 13, 2003, his Supervisor alleged that complainant made a
threat towards him.
On December 2, 2004, the agency issued a document identified as "Partial
Acceptance/Partial Dismissal of Formal EEO Complaint." Therein,
the agency accepted claim (1) for investigation. The agency dismissed
claim (2) - (4) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of
untimely EEO Counselor contact. The agency also dismissed claims (2) and
(4) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim;
and claim (3) pursuant to 29 C.F.R. � 1614.107(a)(8) on the grounds that
claim (3) addresses dissatisfaction with the processing of a previously
filed complaint.
At the conclusion of the investigation of claim (1), complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). On August 11, 2005, the AJ issued a
Notice of Intent to issue a decision without a hearing, allowing the
parties to file a written response to the Notice. The record reveals
that both parties responded.
On August 18, 2005, the agency filed a motion for summary judgment or in
the alternative, a Agency's Motion For Findings of Facts and Conclusions
of Law Pursuant to 29 C.F.R. � 1614.109(g).
In its motion, the agency requested the AJ to issue a decision without
a hearing, in its favor. The agency argued that complainant failed
to establish a prima facie case of national origin discrimination.
The agency further argued that complainant failed to demonstrate that
similarly situated employees, outside his protected class, were treated
more favorably under similar circumstances. As to complainant's reprisal
claim, the agency argued that complainant failed to establish a prima
facie case of reprisal discrimination because he did not show a causal
connection existed between his prior protected activity and the Letter
of Warning (LOW).
On July 25, 2005, the AJ granted the agency's motion for a decision
without a hearing, finding no discrimination. The AJ found that
complainant failed to establish a prima facie case of national origin
and reprisal discrimination. The AJ further found that the agency
nevertheless articulated legitimate, non-discriminatory reasons for its
actions. The AJ found that complainant failed to show that the agency's
articulated reasons were a pretext to mask unlawful discrimination and/or
retaliation.
On August 31, 2005, the agency issued a final action, implementing the
AJ's decision finding no discrimination regarding claim (1).
The record reflects that complainant's Supervisor stated that
on August 2, 2004, complainant informed him that a co-worked had
threatened him (complainant). The Supervisor further stated after
he met with the co-worker, he put both complainant and the co-worker
�off the clock� for one day, pending an investigation of the matter.
The Supervisor stated that the co-worker indicated that he was at the
time clock when complainant approached him and swung his lunch bag,
which struck the co-worker in the groin. The Supervisor stated that
the co-worker demanded an apology from complainant for his actions,
but complainant simply walked away. The Supervisor stated that the
co-worker threatened complainant by saying "next time this happen I
will go up side your head." The Supervisor stated that the Supervisor
Customer Services issued complainant a Letter of Warning (LOW) for
Unsatisfactory Work Performance/Conduct Unbecoming. The Supervisor
stated that complainant was issued a LOW "because he inflicted pain to
[the named co-worker] and [the named co-worker] was issued a Letter
of Warning for retaliating against [complainant]." Furthermore, the
Supervisor stated that complainant was not discriminated against because
of his national origin and prior protected activity.
The record contain a copy of complainant's August 12, 2004 LOW. Therein,
the Supervisor Customer Services stated that complainant's actions was in
violation of Employee and Labor Relations Manual (ELM); M41 Carrier Duties
and Responsibilities Handbook; and M39 Management of Delivery Services.
The record contains a copy of ELM 17.5, Section 666.2 "Behavior and
Personal Habits." Therein, Section 666.2 provides that "employees are
expected to conduct themselves during and outside working hours in a
manner which reflects favorably upon the Postal Service. Although it
is not the policy of the Postal Service to interfere with the private
lives of employees, it does require that postal personnel be honest,
reliable, trustworthy, courteous, and of good character and reputation.
Employees are expected to maintain satisfactory personal habits so as
not to be obnoxious or offensive to other persons or to create unpleasant
working conditions."
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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
non-discriminatory reason for its actions as discussed above. Complainant
has not shown that the agency's articulated reasons were a pretext for
discrimination. The agency's final action implementing the AJ's finding
of no discrimination concerning claim (1) is AFFIRMED.
Claims (2) - (4)
Complainant claimed that he was discriminated against on the bases of
national origin and in reprisal for prior EEO activity when on February
6, 2002, his co-worker swung a door in a man's face to keep him out of
a meeting where nothing was recorded (claim (2)); on February 6, 2002,
he filed an EEO complaint, 4G-752-0137-03, which the investigator found
no wrong doing and he had requested that the complaint be investigated
in another district (claim (3)); and on June 13, 2003, his Supervisor
alleged that complainant made a threat towards him (claim (4)).
In its December 2, 2004 partial dismissal, the agency dismissed claims (2)
- (4) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely
EEO Counselor contact. The agency determined that complainant's initial
EEO Counselor contact occurred on August 20, 2004, which it found to be
beyond the 45-day limitation period. The agency further determined that
complainant was aware of the requisite 45-day time limitation period
because he had previously engaged in the EEO process. The agency also
dismissed claims (2) and (4) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim; and claim (3) pursuant to 29 C.F.R. �
1614.107(a)(8) on the grounds that claim (3) addresses dissatisfaction
with the processing of a previously filed complaint.
Regarding claims (2) and (4), we agree with the agency that the alleged
incidents do not address a personal loss or harm regarding a term,
condition or privilege of complainant's employment as a result of
the alleged incidents. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Therefore, we find that
the agency properly dismissed claims (2) and (4) for failure to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1) .
Regarding claim (3), we find that the agency properly dismissed this claim
pursuant to29 C.F.R. � 1614.107(a)(8). We further find that claim (3)
addresses complainant's dissatisfaction with the processing of a prior
complaint, identified as Agency No. 4G-752-0137-03.
Accordingly, the agency's dismissal of claims (2) - (4) was proper and
is AFFIRMED.
Because we affirm the dismissal of claims (2) - (4) for the reason
stated herein, we find it unnecessary to address the agency's alternative
dismissal grounds for untimely EEO Counselor contact.
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
April 6, 2006
__________________
Date