01997170
12-17-2001
Anthony Garcia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony Garcia v. United States Postal Service
01997170
12-17-01
.
Anthony Garcia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997170
Agency No. 4A-117-1071-96
Hearing No. 160-97-8609X
DECISION
INTRODUCTION
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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
the agency discriminated against him on the bases of disability (Post
Traumatic Stress and Carpal Tunnel Syndrome) and reprisal (prior EEO
activity)<1> when on February 20, 1996, he was told by the Postmaster
not to call the agency's District Injury Compensation Office (DICO)
because he called them too much.
BACKGROUND
The record reveals that complainant was a Modified Custodian at the
agency's Smithtown Post Office, Long Island, New York. During the time
at issue, complainant had a claim pending before the Office of Workers'
Compensation Program (OWCP) and was engaged in a Leave Buy Back (LBB).
While these were being processed, complainant called the DICO to inquire
about the status of his claim. A Senior Injury Compensation Specialist
(Specialist) received complaints from her staff about complainant's
calls. The Specialist contacted complainant's Postmaster (Postmaster)
and informed him of the situation. The Postmaster then informed
complainant that he could no longer call the DICO. Believing he was
a victim of discrimination, he filed a formal EEO complaint with the
agency on January 30, 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.
Among other things, the AJ concluded that, even assuming for the
sake of argument that complainant established his prima facie
cases of discrimination, the agency articulated a legitimate,
nondiscriminatory reason for its action. The Specialist spoke to
the Postmaster regarding complainant's threatening tone and numerous
calls to the DICO. The Specialist also asked the Postmaster to have
complainant submit any questions or requests through him and he would
send them over to the DICO for a response. The Postmaster stated that he
restricted complainant from calling the DICO based on his conversation
with the Specialist. The Postmaster informed complainant that, instead
of calling the DICO, he could come to discuss with him any problems
with the DICO. Then, the Postmaster would try to resolve the matter.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
disability discrimination and/or retaliation.
The agency's final decision implemented the AJ's decision. On appeal,
complainant contends that the Commission should vacate the AJ's decision.
Complainant also asserts that the Commission find in his favor citing
his problems with the agency's DICO.
ANALYSIS AND FINDINGS
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 does not
sit as a fact finder. Id. 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. 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. 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 under Title VII, an
AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission finds that the AJ correctly
determined that there were no genuine issues of material fact and that
summary judgement was appropriate.
CONCLUSION
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
__12-17-01________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record does not indicate complainant's prior EEO activity.