Robert Hall, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 30, 2007
0120061541 (E.E.O.C. May. 30, 2007)

0120061541

05-30-2007

Robert Hall, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert Hall,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200615411

Agency No. 4G-770-0197-04

Hearing No. 330-2005-00087X

DECISION

Complainant filed this appeal from the October 6, 2005 agency

decision which implemented the September 30, 2005 decision of an EEOC

Administrative Judge (AJ) finding no discrimination.

Complainant, a letter carrier and union steward, alleged that the agency

discriminated against him on the bases of race (Black), sex (male),

and reprisal for prior protected EEO activity when: (1) in February

2004, complainant's supervisor harassed him about his uniform, not

calling back to the office, "nixes", change of address (COA) cards and

on February 19, 2004, he was put off the clock; (2) on an unspecified

date, complainant's supervisor pulled his pants' belt and asked what

he had in there; (3) on April 5, 2004, complainant was disciplined for

failure to follow instructions; (4) on February 12, 2004, his supervisor

stated that if she had the authority to fire him he would have been

fired a long time ago; and (5) on February 17, and February 18, 2004,

complainant was called into the office regarding his work performance.

The record reveals that complainant failed to follow the instructions of

his manager on several occasions and that he failed to maintain a neat,

clean and professional appearance as required by agency regulations.

The record reveals that complainant wore rain pants even when it was

not raining and that his supervisor had told him about being out of

uniform several times. The record also reveals that complainant had

been issued discipline previously for failure to follow instructions.

The record further reveals that his supervisor had issued discipline

to other carriers. In his deposition, complainant stated that his

supervisor had not done anything to him that could be interpreted

as sexual in nature. The record reveals that on February 19, 2003,

complainant was placed on administrative leave because he was out of

uniform. Complainant stated in his deposition that his supervisor touched

him when she talked. He stated that one time she grabbed his arm, saying

that if he failed to follow instructions, consequences would follow.

He also stated that she tapped his shoulder to get his attention once.

The record reveals that the supervisor gave all her carriers instructions

about proper postal procedures on nixes, COA cards, penalty overtime

and not calling back to the office.

Regarding claims 4 and 5, the agency issued a partial dismissal of the

complaint, dated June 5, 2004, dismissing the two claims pursuant to 29

C.F.R. � 1614.107(a)(1). The record contains the AJ's Acknowledgment

and Order. Therein, the AJ stated that if the complainant failed to

oppose the agency's dismissal in writing within the comment period,

the opportunity to have the dismissal reviewed by the AJ would be deemed

waived. There is no record that complainant objected to the dismissal

during the pendency of his complaint before the AJ.

The Commission's regulations allow an AJ to issue a decision without a

hearing (summary judgment) 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.

After a review of the record in its entirety, the Commission concludes

that the AJ's grant of summary judgment was appropriate because there

are no genuine issues of material fact. Complainant has failed to show

that the alleged discriminatory actions were taken because of a prohibited

basis. What the record suggests is that complainant resisted following

the instructions of his supervisor. To the extent that complainant is

raising a claim of a hostile work environment, the Commission finds that

the incidents, including the dismissed claims, were not so severe and

pervasive so as to alter the conditions of his employment. Further, even

when the evidence is construed in a light most favorable to complainant,

complainant has failed to show by a preponderance of the evidence that

discrimination occurred or that the agency intended to discriminate

against him.

The agency's finding of 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

May 30, 2007

__________________

Date

1 Due to a new data system, this matter has been re-designated with the

above-referenced appeal number.

??

??

??

??

2

0120061541

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036