Steven A. Grant, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Metro Area) Agency.

Equal Employment Opportunity CommissionDec 10, 2003
01A23956 (E.E.O.C. Dec. 10, 2003)

01A23956

12-10-2003

Steven A. Grant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Metro Area) Agency.


Steven A. Grant v. United States Postal Service

01A23956

December 10, 2003

.

Steven A. Grant,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Metro Area)

Agency.

Appeal No. 01A23956

Agency No. 1A-113-0005-01

Hearing No. 160-A2-8089X

DECISION

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

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.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. In its formal

complaint, complainant alleged that the agency discriminated against him

on the basis of sex (male) when he was not selected for four Manager,

Distribution Operations (MDO) positions.

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 because complainant failed to establish a prima facie case

of sex discrimination. The agency fully 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 only appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exist

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, the issuance of

a decision without a hearing is not appropriate. Similarly, and AJ may

not issue a decision without a hearing if he or she actually has to find

facts first to do so.

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). A complainant must first establish a prima facie

case of discrimination. He can do this by establishing that similarly

situated individuals outside of his protected classes were treated more

favorably than he was or by setting forth some other evidence from which

a reasonable fact-finder could draw an inference of discrimination.

See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

He failed to establish that any similarly situated employee out of his

protected group was treated more favorably under similar circumstances.

Although a female was selected, she was not similarly situated to

complainant because complainant did not request to be considered for all

positions, and the female selectee received one of the positions that

he did not apply for. The other three selectees were male. Further,

we conclude that complainant did not set forth any other evidence from

which we could draw an inference of sex discrimination.

Therefore, after a careful review of the record, the Commission finds

that the AJ appropriately issued a decision without a hearing, as no

genuine dispute of material fact exists. We conclude that complainant

has not �set forth specific facts showing that there is a genuine issue

for trial.� Fed. R. Civ. P. 56 (e).

We find that the AJ's decision properly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. Further,

construing the evidence in the light most favorable to complainant,

we note that he failed to establish that similarly situated individuals

outside of his protected class were treated more favorably than he was.

Therefore, for the foregoing reasons, we affirm the agency's final order

adopting the AJ's 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 10, 2003

__________________

Date