0120093299
01-29-2010
Terrence L. Sanders, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Terrence L. Sanders,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120093299
Hearing No. 532200900041X
Agency No. 4C440021907
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 9, 2009 final order concerning his equal
employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. Complainant alleged that the agency discriminated
against him on the bases of race (Black), sex (male), disability (hip,
shoulders, joints), age (44), and reprisal for prior protected EEO
activity when his request for reinstatement was denied.
In the instant matter, complainant worked as a mail handler in the
agency's facility in Cleveland, Ohio and that he voluntarily retired
from his position with the agency in September 2003. In July 2007,
complainant requested reinstatement to the mail handler position he
held previously. In correspondence from the agency dated July 23,
3007, complainant was informed that in accordance with agency policy,
complainant was permitted to request reinstatement, but that the agency
was not required to reinstate him. Complainant was advised that in
order to process his request for reinstatement, complainant would need
to demonstrate that he was qualified for reinstatement based on the
Battery Test 473 Examination. The letter also advised complainant of
the process for scheduling the examination and explained that the next
exam would be held within the next six months. The record indicates
that complainant has not yet taken the Battery Test 473 Examination.
Finally, the letter informed complainant that even in the event that he
was able to establish his qualification for reinstatement, the decision
would be at the discretion of the agency and that reinstatement was not
guaranteed. The record further indicates that complainant's request
for reinstatement is currently pending before the agency and has not
been denied. The agency indicates that no mail handlers have been hired
or reinstated since July 2007.
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 agency's final order implemented the
AJ's decision. On appeal, complainant contends that as former handler,
he is only required to take a physical examination and not the written
test at issue herein. Complainant also alleges on appeal that similarly
situated individuals were treated more favorably. Specifically,
complainant argues that other employees have been reinstated without
taking a written or physical examination.
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.
In Appeal No. 0120082221 (August 21, 2008), the Commission found
that because the agency refused to process complainant's request for
reinstatement, the complaint stated a claim. In her decision, the AJ
found that the agency articulated a legitimate, non-discriminatory
reason for not yet reinstating complainant to his former position.
Namely, the AJ found that because complainant has not yet taken the
required examination for reinstatement, the agency's action was not
discriminatory.
The Commission finds that complainant has failed to demonstrate
that similarly situated individuals were treated more favorably.
Specifically, the Commission notes that the record contains
information about comparators reflecting that they were not similarly
situated to complainant in that they held different positions than
complainant. Nonetheless, they were required to provide proof of
qualification on Battery Test 473. Further, the last reinstatement of an
employee - a mail handler equipment operator - occurred in July 2007. We
find that even assuming arguendo that complainant had established a
prima facie case of discrimination, the AJ correctly determined that
the agency articulated a legitimate, non-discriminatory reason for its
conduct. Complainant refuses to take an examination which is now required
for reinstatement. As such, complainant has failed to show any evidence
of pretext.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge'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 (M1208)
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 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 (S0408)
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 (Z1008)
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
January 29, 2010
__________________
Date
2
0120093299
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093299