01a45884
12-13-2005
Robert J. Thompson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Robert J. Thompson v. United States Postal Service
01A45884
December 13, 2005
.
Robert J. Thompson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A45884
Agency No. 1F-895-0005-03
Hearing No. 370-2004-00166X
DECISION
JURISDICTION
On September 1, 2004, complainant filed an appeal from the agency's
final agency order concerning his equal employment 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. On appeal,
complainant requests that the Commission reverse the agency's acceptance
and implementation of an EEOC Administrative Judge's (AJ) finding of no
discrimination. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Part-Time Flexible (PTF) Tractor-Trailer Operator in the agency's
Reno Processing & Distribution Center, Motor Vehicle Services (MVS),
Reno Nevada. Under the agency Collective Bargaining Agreement (CBA),
a hold down assignment is one that fills a full-time regular (FTR)
employee's usual assignment when it is temporarily vacant and is filled
on the basis of seniority. Complainant stated that his request for a
hold down assignment was denied by his supervisor despite his becoming
the senior PTF on December 28, 2002.
The record reveals that on December 23, 2002, complainant relinquished
his hold down on Route 9, stating: �Hold Down on Route #9 ends 12-28-02.
I would like to be put back on any and all day routes that come up for now
I am the Senior PTF.� Thereafter, employee 1 (E1), with less seniority
than complainant, requested a hold down for Route 10, a night shift,
immediately after it opened on December 24, 2002. The CBA stated that
the length of time between the posting and awarding of temporary hold
down bids shall not exceed 72 hours. After being informed that the MVS
was reducing hours during daytime routes, complainant, on December 27,
2002, requested a hold down on Route 10. The agency informed complainant
that the Route 10 assignment had been assigned to E1.
On January 15, 2003, complainant contacted an EEO counselor and filed a
formal EEO complaint on April 1, 2003, alleging that the agency retaliated
against him for prior EEO activity when he was denied a hold down.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ adopted the agency's facts and applicable law as set forth in its
Motion for Summary Judgment. The AJ summarily concluded that complainant
failed to show by a preponderance of the evidence, that he was a victim
of reprisal. In its Motion for Summary Judgment, the agency concluded
that complainant failed to establish a prima facie case of reprisal.
Specifically, the agency found that complainant did not request a
vacant hold down position. Further, the agency found that there was no
evidence of retaliatory animus or any nexus between the agency's action
and complainant's prior protected activity. The agency found that
it had stated a legitimate, nondiscriminatory reason for its action.
Specifically, complainant was not entitled to displace E1 from a hold
down position after the 72 hour open period had closed as required by
the CBA.
On appeal, complainant restates arguments previously made in opposition to
the agency's Motion for Summary Judgement. Complainant further contends
that there were credibility issues with his supervisor and that he was
denied twelve hours of official time to prepare and present his opposition
to the agency's request for summary judgement. In response, the agency
restates its position contained in the Motion for a Decision without
Hearing and contends that complainant and E1 were the only remaining
PTF MVS employees as of December 28, 2002, when the Senior PTF became
a FTR assigned to Route 9.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a �decision on
an appeal from an agency's final action shall be based on a de novo
review . . .�); see also EEOC Management Directive 110, Chapter 9, �
VI.B. (November 9, 1999). (providing that an AJ's �decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be
reviewed de novo�). This essentially means that we should look at this
case with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's and agency's, factual conclusions and
legal analysis including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review �requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,� and that EEOC
�review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law�).
ANALYSIS AND FINDINGS
Complainant argues on appeal that the agency denied him twelve (12)
hours of official time. However, complainant offers no evidence in the
record of his request for official time nor is there any evidence that
the agency denied this alleged request.
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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 in dispute.
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 Corp. 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, a
hearing is required. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
after determining that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEC Appeal
No. 01A24206 (July 11, 2003).
With respect to complainant's claim of retaliation, complainant can
establish a prima facie case of reprisal discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that:
(1) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Here, we find that there is no genuine issue of material fact.
Complainant had previously engaged in the EEO process. He had more
seniority than E1 who was the only other PTF in the MVS. E1 requested
a hold down position on December 24, 2002, when the position opened.
The CBA stated that an opening for a hold down position would be open for
72 hours. Complainant requested the Route 10 hold down position over 72
hours after that hold down vacancy had been posted and his supervisor
denied him the position. While complainant contends that there are
unresolved credibility issues with his supervisor that need to be
resolved at hearing, he failed to specifically state what the credibility
issues were. Complainant had the opportunity to apply for the hold down
vacancy, but wanted to work on the day shift and only changed his mind
when he discovered that the agency was reducing day shift hours of work.
Complainant failed to show that other employees were allowed to rescind
a granted hold down request of a coworker with less seniority after the
72 hour open period had expired. We find that complainant has failed
to establish that there is a genuine issue of material fact in dispute
concerning why he was denied the hold down position.
Therefore, the Commission finds that a decision without a hearing was
appropriate. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we conclude that complainant failed to present evidence
that any of the agency's actions were motivated by retaliation for his
prior EEO activities. The agency's final order is hereby 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:
December 13, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations