______________, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionJul 28, 2005
01a40694 (E.E.O.C. Jul. 28, 2005)

01a40694

07-28-2005

______________, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


______________ v. United States Postal Service

01A40694

July 28, 2005

.

______________,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 01A40694

Agency Nos. 4H-335-0068-01 and 4H-335-0098-01

Hearing No. 150-A1-9035X

DECISION

Complainant timely initiated an appeal from a final order concerning his

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. For the

following reasons, the Commission AFFIRMS the agency's final order.

The record reveals that during the relevant time, complainant

was employed as an Electronic Technician at the agency's Lakeland,

Florida facility. Complainant sought EEO counseling and subsequently

filed formal complaints alleging that he was discriminated against on

the basis of race (Caucasian) when from June 12 through June 23, 2000,

October 15 through October 20, 2000, and October 22 through 27, 2000,

the agency denied his request for annual leave.

At the conclusion of the investigation, complainant was informed of her

right to request a hearing before an EEOC Administrative Judge (AJ) or

alternatively, to receive a final decision by the agency. Complainant

requested a hearing with AJ, but the agency moved for a decision without a

hearing. The AJ granted the agency's motion and found no discrimination.

The agency fully implemented the AJ's decision in its final order.

On appeal, complainant contends that the AJ improperly found no

discrimination and mainly restates arguments previously made during the

investigation. He notes that the agency's stated reason for denying him

annual leave, exhaustion of earned annual leave, is not a reason cited in

the union agreement for denying leave. Complainant further argues that

the agency offered two conflicting reasons for denying his leave requests.

Complainant notes that his supervisor contends that he denied complainant

leave because he exhausted his leave balance, but the Maintenance Manager

responded that complainant was denied leave because of the operational

needs of the agency. Finally, complainant argues that the AJ erred when

she denied his request to amend his complaint to include reprisal as a

basis for the agency's actions.

The record reveals that complainant was denied requests for 72 hours of

annual leave in June 2000 and 80 hours of annual leave in October 2000.

A substitute supervisor approved complainant for 32 hours of annual

leave for the week after Thanksgiving 2000. Complainant alleged that an

African-American co-worker (C1) who worked Tour 1 and was supervised by

his supervisor was granted 175.5 hours of annual leave although he only

had earned 150 hours of leave, and a Hispanic employee (C2) who worked

for the same supervisor was granted leave in excess of the amount of

leave he had earned. He also alleged that another African-American (C3)

employee who worked Tour 2 and was supervised by another supervisor was

also granted annual leave in excess of what he earned in 2000.

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, a decision without

a hearing is not appropriate. In the context of an administrative

proceeding, an AJ may properly consider issuing a decision without a

hearing only upon a determination that the record has been adequately

developed for summary disposition. See Petty v. Department of Defense,

EEOC Appeal No. 01A24206 (July 11, 2003).

As an initial matter, we find that the AJ improperly denied complainant's

request to add reprisal as a basis for his claim. We note that during in

his investigative affidavit, complainant first requested that reprisal

be added as a basis for his complaint. The Commission has held that a

complainant may allege discrimination on all applicable bases, including

sex, race, national origin, color, religion, age, disability and reprisal,

and may amend his complaint at any time, including at the hearing, to add

or delete bases without changing the identity of the claim. See Sanchez

v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. United

States Postal Service, EEOC Request No. 05940563 (January 19, 1995).

Therefore, we amend complainant's instant complaint to include the basis

of reprisal for prior EEO activity.

Assuming arguendo that complainant established prima facie cases of

race discrimination and reprisal, we find that complainant's supervisor

provided a legitimate, non-discriminatory reason for denying complainant's

June and October 2000 leave requests, namely, that complainant's requests

exceeded his annual leave allowance for the year. Complainant responded

that his supervisor's explanation contradicts the Maintenance Manager's

claim that complainant was denied leave to meet the agency's operational

needs. However, while the Maintenance Manager gave the additional reason

of �operational needs� as an explanation for denying complainant leave,

he affirmed in an investigative affidavit dated September 11, 2001 that

complainant was denied leave because his requests exceeded his leave

balance. Moreover, complainant's supervisor was the agency official who

denied complainant's leave requests, not the Maintenance Manager, who

denied any role in denying complainant leave. Complainant also contends

that three co-workers were granted leave during the relevant time period

beyond their annual leave balance. However, the record reveals that

C1 and C2 were custodians who were not in the same occupational group

as complainant, and C3 worked on a different tour than complainant and

was supervised by a different supervisors. These comparators were not

similarly situated to complainant. Complainant also argues that the

agency's explanation is not cited as a basis for denial of leave in the

union agreement. However, we find that the allegation that the agency

restricted leave beyond the provisions of the union agreement is not

persuasive evidence of pretext in this case. We find that complainant

failed to provide any evidence from which a reasonable fact-finder could

conclude that the agency's explanation was pretext for reprisal or race

discrimination. Consequently, we find that the AJ properly issued a

decision without a hearing, finding no discrimination.

Finally, we note that on appeal, complainant appears to request that his

instant complaint be consolidated with his previous complaints and his

spouse's complaints. However, we note that the Commission has issued

final decisions on all of the complaints cited by complainant in his

request for consolidation. These complaints cannot be reopened at this

juncture. Consequently, we deny complainant's request for consolidation.

Therefore, 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 (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

_July 28, 2005_________________

Date