0120070797
09-05-2008
Randall Roberts, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Randall Roberts,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070797
Hearing Nos. 370-2006-00051X, 370-2006-00046X
Agency Nos. 1F-944-0009-04, 1F-944-0002-05
DECISION
Complainant filed an appeal from the agency's final actions dated October
20 and 24, 2006, finding no discrimination with regard to his complaints.
In his complaints, complainant, an Electronic Technician, at the agency's
North Bay Processing and Distribution Center in Petaluma, California,
alleged discrimination based on age (over 40) and in reprisal for prior
EEO activity when (1) on March 8, 2004, he was issued a notice of 14-day
or less suspension dated March 3, 2004, charging him with unacceptable
conduct - pilferage; and (2) on November 10, 2004, he was issued a 14-day
or less suspension dated November 9, 2004, for unacceptable conduct -
failure to follow instructions.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ).
On September 28 and 29, 2006, the AJ issued decisions without holding
a hearing, finding no discrimination. The agency implemented the AJ's
decisions.
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.
The Commission finds that the grants of summary judgment were appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged suspensions. The AJ noted that
at the relevant time, complainant was a union steward for the Maintenance
Craft.
With regard to claim (1), the AJ noted that complainant claimed that after
being nominated for the position of local union president, his coworker
wrote and circulated articles about him which he considered slanderous.
After another employee told him that there were more articles in
the coworker's work place on January 23, 2004, complainant and that
employee entered the coworker's work place and found the articles
and made copies of the articles. Complainant does not dispute this.
By letter dated January 23, 2004, the coworker complained to the Manager
of Distribution Operations that complainant and the employee had engaged
in "thievery and vandalism" regarding the articles. The AJ stated that
the Supervisor Maintenance Operations received the coworker's complaint
and statements regarding the incident and also interviewed complainant.
Based on these, the supervisor issued complainant the suspension for
his violation of the coworker's personal space in accessing the articles.
With regard to claim (2), the AJ noted that on October 13, 2004,
complainant, as a union steward, attempted to interview a Supervisor
Maintenance Operations regarding three grievances. A confrontation
ensued between the parties which resulted in the supervisor refusing
to cooperate with complainant and ordering him to leave his office.
Complainant claimed that during the interview, the supervisor insisted
upon giving a non-responsive answer which amounted to a lecture regarding
complainant's duties as an electronic technician, so he interrupted the
supervisor several times, telling him to answer the question and not to
lecture him. The supervisor stated that during the interview, described
above, complainant repeatedly interrupted him while he was attempting
to answer a question, raising his voice each time; thus, the supervisor
terminated the interview and instructed complainant to leave his office.
Then, complainant told the supervisor that he could not tell complainant
what to do because complainant was a steward. The supervisor indicated
that he told complainant two more times that he had ended the interview
and to follow his instructions but complainant failed to do so. As a
result, the supervisor made a decision, which his manager agreed with,
to issue complainant the alleged suspension since complainant's action,
described above, violated the agency's standards of conduct.
After a review, the AJ determined and we agree that complainant failed to
rebut the agency's legitimate, nondiscriminatory reasons for the alleged
suspensions. Furthermore, we also agree with the AJ that complainant
failed to identify a similarly situated individual who was treated more
favorably than he was under similar circumstances.
Accordingly, the agency's final actions are AFFIRMED.
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
9/5/08
__________________
Date
2
0120070797
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036