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.
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0120061541
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036