0120054421
01-19-2007
Samuel Cisneros, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Samuel Cisneros,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200544211
Agency No. 4F945021103
Hearing No. 370-2004-00451X
DECISION
Complainant filed an appeal from the agency's final action dated May 12,
2005, finding no discrimination with regard to his complaint. In his
complaint, dated November 13, 2003, complainant, a Mail Processing Clerk
at the agency's Hayward Post Office, alleged discrimination based on
disability (elbow strain) and in reprisal for prior EEO activity when:
1. On July 16, 2003, his supervisor instructed him to spread flats of
mail;
2. On July 17, 2003, the supervisor did not allow him to take a lunch
until 10:00 am;
3. On July 18, 2003, the supervisor followed him into the restroom;
4. On July 22 and 23, 2003, the supervisor called him into a private
office to be interrogated about the July 17, 2003 lunch incident;
5. On August 6, 2003, he was issued a 14-day suspension for "Failure to
Follow Instructions" for taking lunch before 10:00 am on July 17, 2003;
6. On September 15, 22, and 29, 2003, he was denied overtime opportunities
by two other supervisors; and
7. On September 26, 2003, his manager called him into a private office
for interrogation concerning his workers' compensation claim and required
him to retrieve a tray of mail to perform a piece count in the presence
of a union officer.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On March
31, 2005, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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.
Upon review, the Commission finds that the AJ's issuance of a decision
without a hearing was proper in this case since there is no genuine issue
of material fact. The AJ found that the agency did not discriminate
against complainant. The agency maintained that assuming arguendo
that complainant had established a prima facie case of discrimination,
it articulated legitimate, nondiscriminatory reasons for its actions.
With regard to claim 1, complainant's supervisor stated that during
the relevant time period at issue, he instructed complainant to spread
flats since complainant finished his scheme operation. The supervisor
also stated and the Postmaster agreed that it was customary to assign an
employee to spread flats to one of the carrier units once the employee
finishes his or her scheme operations.
With regard to claim 2, the supervisor stated that at 9:05 am on July
17, 2003, he instructed complainant to spread TV guides to the carrier
section as it was considered "hot" mail at that time. At the same time,
the supervisor instructed complainant to begin his lunch break at 10:00
am which was 6 hours after complainant's tour began (pursuant to the
agency regulation).
With regard to claim 3, the supervisor denied the incident. The
Postmaster also indicated that complainant did not report the incident
to management.
With regard to claim 4, the supervisor denied interrogating complainant.
Rather, he stated that complainant was given a fact-finding investigative
interview in the presence of his union representative for the July 17,
2003 incident, described in claim 2, in which he refused to follow the
instructions of his supervisor when complainant clocked out for lunch
before his scheduled lunch.
With regard to claim 5, the supervisor stated that after the investigative
interview, complainant was issued the suspension for failure to follow
instructions. Specifically, the supervisor stated that on July 17, 2003,
at 9:05 am, he instructed complainant to spread the TV guides first and
then to take his lunch at 10:00 am. However, complainant ignored his
instructions and clocked out for lunch at 9:37 am. Complainant does
not dispute this. The record indicates that complainant, however, did
not serve the suspension because it was settled during the grievance
procedure.
With regard to claim 6, the Postmaster stated that complainant was not
given overtime due to his recent medical limitations that he should not
be assigned to work on the Delivery Bar Coded System (DBCS) machine
(a sorting machine). The record indicates that on August 29, 2003,
complainant had a temporary elbow strain injury at work. Complainant,
then, provided documentation for the first time that he should work
a modified schedule from August 30 to September 20, 2003; he should
be given a lunch break within 5 hours of the start of his shift;
and he was only able to do manual distribution, no sorting machines.
On September 10, 2003, he submitted additional medical information
indicating that he should wear an elbow strap with arm; no squeezing
motion with left arm; and rest 5 minutes for every hour working or
operating with sorting machine. Complainant was released to return
to work with no restrictions on October 15, 2003. Complainant is not
seeking a reasonable accommodation. The Postmaster stated that the
decision to assign overtime work to an employee was based on the type of
work available and on a rotating basis throughout the calendar quarter.
With regard to claim 7, the Postmaster stated that during the relevant
time period at issue, complainant indicated that due to his injury,
described above, he could only process a limited number of pieces of
letter mail on the DBCS machine. In response, complainant was asked to
count mail in order to ensure that he was aware of the amount of mail
he must load into the DBCS machine in order to be within his medical
limitations.
Based on the foregoing, the Commission finds that the agency articulated
legitimate, nondiscriminatory reasons for the alleged actions. The
Commission also finds that complainant failed to provide any evidence
that the articulated reasons were pretextual or that any agency action
was motivated by discrimination. The Commission does not address in this
decision whether complainant is a qualified individual with a disability.
Furthermore, we note that complainant has not claimed that he was denied
a reasonable accommodation.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
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
January 19, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
??
??
??
??
5
0120054421
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036