0120101726
06-29-2011
Shawn H. Johnson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Shawn H. Johnson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120101726
Hearing No. 430-2009-00201X
Agency No. 4K-230-0242-08
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency’s decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as a City Carrier at the Agency’s Walnut Hill Station in
Petersburg, Virginia. Report of Investigation (ROI), at 2. Complainant
sought counseling and subsequently filed a formal complaint.
Complainant alleges that he was subjected to discrimination on the basis
of reprisal for prior protected EEO activity when:
1. On July 1, 2008, Complainant was issued a notice of suspension (no time
off) of 14 days or less, for unsatisfactory performance/improper conduct.
2. On July 10, 2008, Complainant was issued a notice of suspension (no
time off), of 14 days or less, for unsatisfactory performance/improper
conduct.
3. On July 28, 2008, Complainant was removed (escorted) from Postal
premises; subsequently on July 29, 2008, Complainant was placed on
emergency placement in an off-duty status (without pay), and he has not
been permitted to return to duty.
At the conclusion of the investigation, Complainant received a copy
of the investigative report. The Agency informed Complainant of
his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the Agency.
Complainant requested a hearing before an AJ.
On March 3, 2010, an EEOC Administrative Judge (AJ) issued a decision
without a hearing finding that there was no genuine issue of material
fact in dispute, and concluded that Complainant had not been discriminated
against as alleged. Specifically, the AJ found that the Agency presented
legitimate, nondiscriminatory reasons for its actions, which Complainant
failed to rebut.
On March 12, 2010, the Agency issued a final order adopting the AJ’s
decision. Thereafter, Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
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, we find that the issuance of summary judgment was appropriate
as there are no genuine issues of material fact. Regarding claims 1
and 2, the Station Manager stated that she was the management official,
who made the decision to issue the Notice of Suspension (No Time Off) of
14 Days or Less to Complainant on July 1, 2008, based on Complainant’s
improper conduct when he was observed driving unsafely, driving without a
seatbelt on, his failure to follow instructions when he was instructed
to go back out to deliver mail he brought back and he refused, and
when he had continuously been instructed not to bring open drinks on
the workroom floor. The Station Manager stated that Complainant’s
prior EEO activity was not a factor in her decision to issue him the
subject discipline. The Station Manager said that this discipline was
rescinded and reissued at least twice due to multiple technical errors.
The Station Manager claimed that the final version was issued on July 11,
2008. The Station Manager asserted that Complainant filed a grievance
about this suspension, and her decision was upheld at Step B of the
grievance process. ROI, at Affidavit B.
With respect to claim 3, the Station Manager stated that Complainant’s
co-worker (co-worker A) telephoned her and reported that Complainant
had “choked” her while they were loading their trucks on the dock
earlier that morning. The Station Manager stated that co-worker A told
her that she did not want the Station Manager to take any action other
than to talk to employees about “horseplay.” Nevertheless, the
Station Manager reported the incident to the Postal Inspection Service
in accordance with Agency policy regarding violence in the workplace so
an inspector could conduct and investigation. The Station Manager also
placed Complainant on “emergency placement” in accordance with the
collective bargaining agreement. The Postmaster of Petersburg concurred
with the Station Manager’s actions. Investigative Memorandum from
the United States Postal Inspection Service, at 1-4.
The Commission finds that Complainant failed to rebut the Agency's
articulated legitimate, nondiscriminatory reasons for its actions.
Additionally, the Commission finds that Complainant has failed to show by
a preponderance of the evidence that he was subjected to discrimination
on the basis of reprisal.
CONCLUSION
The Agency’s decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 29, 2011
__________________
Date
2
0120101726
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101726