Steve Weitzman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.

Equal Employment Opportunity CommissionDec 4, 2001
01992434 (E.E.O.C. Dec. 4, 2001)

01992434

12-04-2001

Steve Weitzman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.


Steve Weitzman v. United States Postal Service (Northeast Area)

01992434

December 4, 2001

.

Steve Weitzman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Northeast Area),

Agency.

Appeal No. 01992434

Agency No. 1B-069-0028-97

Hearing No. 160-99-8042X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) 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., and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to

29 C.F.R. � 1614.405. Complainant alleges he was discriminated against

on the bases of religion (Jewish), disability (cervical disc syndrome,

scoliosis, bulging discs, post traumatic stress disorder), and in reprisal

for prior protected activity (prior EEO complaints) when on July 8,

1997, he was issued his fifth notice of removal, effective August 9,

1998, charging him with failure to complete a scheduled Fitness for Duty

Examination (FFD) in accordance with a union settlement agreement dated

January 8, 1997. For the following reasons, the Commission affirms the

agency's final decision.

The record reveals that complainant, a Mail Processor at the agency's

Stamford, Connecticut facility, filed a formal EEO complaint with the

agency on September 2, 1997, alleging that the agency had discriminated

against him as referenced above. 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 concluded that complainant failed to establish a prima facie case

of religion, disability, or reprisal discrimination, in that complainant

failed to demonstrate that similarly situated employees not in his

protected classes were treated differently under similar circumstances.

The agency's final decision implemented the AJ's decision. On appeal,

complainant contends that the AJ erred in issuing summary judgment

as there are questions of material fact at issue. Complainant also

contends that he complied with the terms of the settlement agreement,

that the record contains errors of fact with regard to the specific

number of scheduled FFD examinations, and that the AJ erred in finding

no prima facie case.

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 judgement, a court does not

sit as a fact finder. Id. The evidence of the non-moving party must be

believed at the summary judgement stage and all justifiable inferences

must be drawn in the non-moving party's favor. Id. A disputed issue of

fact is genuine if the evidence is such that a reasonable fact finder

could find in favor of the non-moving party. Celtotex v. Carett, 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 judgement is not appropriate.

In the context of an administrative proceeding under Title VII, an AJ may

only properly consider summary judgement after there has been adequate

opportunity for development of the record. Our review of an AJ's legal

determinations and the decision to issue a decision without a hearing

pursuant to 29 C.F.R. � 1614.109 (g) is based on a de novo standard of

review. See EEOC Management Directive 110 (MD-110) Chapt. 9-16 (1999).

Here, we assume for the purposes of the foregoing analysis, that

complainant is an individual with a disability. We note that complainant

failed to present persuasive evidence that the agency's actions were

in retaliation for complainant's prior EEO activity or were motivated

by discriminatory animus toward complainant's religion or disability.

The record reflects that complainant was to submit to a FFD examination,

under the terms of a settlement agreement, in order that the agency

could offer complainant a limited duty assignment commensurate with

his medical restrictions. Complainant was to provide the agency with

the medical report and diagnostic results from his private physician.

After rescheduling the FFD examination twice, complainant arrived for

his examination on February 20, 1997, but failed to bring the requested

records, and the examination could not be completed. The agency

then issued complainant a letter, dated May 20, 1997, setting out

what complainant needed to provide in order for the examination to

be completed. When complainant failed to furnish the agency with the

requested records, a Notice of Removal, dated July 3, 1998, was issued

to complainant. We find that complainant has failed to establish a

prima facie case of religion, disability, or reprisal discrimination

in that he has not shown that any similarly situated individuals,

outside of his protected classes, were treated more favorably under

similar circumstances.

Complainant contends that he did in fact satisfy the requirements of

the settlement agreement, and that even assuming he refused to complete

a FFD examination, that is not proper grounds for termination. We find,

however, that these arguments are not relevant to the analysis of a prima

facie case as they address alleged violations of a union settlement

agreement by the agency, and as such are outside the purview of the

Commission. Further, the record reveals that the matter has already been

decided through the union grievance process, which was the proper forum.

As complainant has failed to adduce any persuasive evidence that the

agency's issuance of the Notice of Removal was based upon retaliatory

or discriminatory animus toward complainant's religion or disability,

and he has been unable to show that any similarly situated individuals,

outside his protected classes, were treated more favorable under similar

circumstances, we find no discrimination.

We discern no basis to disturb the AJ's decision. Therefore, after a

careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we affirm the agency's final decision.

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

December 4, 2001

__________________

Date

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.