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.