0120092796
10-22-2009
Bruce C. Webster, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bruce C. Webster,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092796
Agency No. 1A-102-0025-08
Hearing No. 520-2009-00042X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 25, 2009 final action concerning an equal
employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Small Bundle
Parcel Operator at the agency's Morgan Processing & Distribution Center
in New York, New York.
On June 1, 2008, complainant filed the instant formal complaint. Therein,
complainant claimed that the agency discriminated against him in reprisal
for prior protected activity when:
(1) his request for a schedule change was denied;
(2) he was charged 3.5 hours Leave Without Pay (LWOP)1; and
(3) on March 4 and 7, 2008, complainant was harassed by his supervisor.
During the period at issue, complainant's work schedule was on Tour
1 which was 12:00 a.m. to 8:30 a.m. On or about February 8, 2008,
complainant requested a schedule change to work from 6:00 a.m. to 2:30
p.m. for February 12, 2008. This request was denied. On February 11,
2008, complainant submitted a second request for a schedule change,
but it was also denied. Complainant's request for a schedule change for
February 12, 2008 was so he could be "on the clock" for an arbitration
meeting at 9:30 a.m on that day. Despite the denial of these two
requests, however, complainant was ultimately approved for a schedule
change for February 12, 2008.
On June 20, 2008, the agency issued a partial dismissal. The agency
accepted for investigation claims 1 - 2. However, the agency dismissed
claim 3 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim, finding that he was not aggrieved and the claim did not rise to
the level of actionable harassment.
Following the investigation concerning claims 1 - 2, complainant requested
a hearing before an EEOC Administrative Judge (AJ). On March 9, 2009,
the AJ issued a decision by summary judgment in favor of the agency.
On March 25, 2009, the agency fully implemented the AJ's decision in
its final action.
The AJ found that in regard to claim 1, complainant did not establish
a prima facie case of reprisal discrimination. The AJ further found
that assuming complainant established a prima facie case of reprisal
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a pretext.
The AJ noted that the Acting Senior Manager Distribution Operations
(Senior MDO) denied complainant's request on February 9, 2009, stating
that his services were required as scheduled. The Senior MDO further
stated "I was not aware that the employee needed a change of schedule
for an EEO complaint."
The AJ noted that on February 11, 2008, complainant submitted a second
request for a schedule change to the Manager Distribution Operations
(MDO). The AJ noted that according to MDO, he denied complainant's
schedule change request "because the employee was needed in his
scheduled work assignment." MDO stated "I do not believe the explanation
accompanied the original request." The AJ noted that complainant then
contacted the union regarding the denial of his requests for a change
of schedule; and the Labor Relations Specialist resolved the matter and
granted complainant's request. The AJ noted that on February 12, 2008,
the date of the arbitration, complainant was finally authorized to work
at 6:00 a.m. so he could be on the clock for the 9:30 a.m. arbitration.
Regarding claim 2, the AJ found that complainant established a prima facie
case of reprisal discrimination. The AJ found, however, that the agency
articulated legitimate, nondiscriminatory reasons for its actions which
complainant failed to show were a pretext. The AJ noted that according
to another Manager Distribution Operations (MDO2), complainant was charged
3.5 LWOP for not performing his duties on the morning of the February 12,
2008 arbitration. Specifically, the AJ noted that on February 12, 2008,
complainant arrived to work one hour earlier than his schedule change
provided, at 5:00 a.m (for a 6:00 a.m. starting time). The AJ noted that
complainant indicated that he felt ill and requested medical assistance.
The AJ noted that a nurse arrived at 6:15 a.m. and escorted complainant
to the medial unit; and he was released as "fit for light duty with
restrictions" after 8:00 a.m. The AJ noted that the record reflects
that complainant did not begin working and took a coffee break.
MDO2 stated that complainant "reported to duty at 0600 claming to be
sick and requested to go to the medical unit. The employee remained
in the medical unit until time to report to his arbitration hearing."
The AJ noted that according to complainant's front line supervisor
(S1), he stated that on February 12, 2008, he charged complainant with
3.5 LWOP. Specifically, S1 stated that he was instructed by MDO2 "not
to pay [complainant] because he did not work those hours."
On appeal, complainant argues that the AJ erred in finding no
discrimination. Specifically, complainant contends that the AJ issued
a summary judgment without a hearing "solely base[d] on statements in
affidavits by [Senior MDO], [S1] and [MDO]."
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.
Complainant has offered no persuasive arguments on appeal regarding the
AJ's decision to issue a decision without a hearing, or regarding the
AJ's findings on the merits. 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 action, 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 unlawful
discrimination occurred.2
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
October 22, 2009
__________________
Date
1 The record reflects that as a result of a grievance complainant filed,
he was reimbursed for the 3.5 hours, and his time records adjusted.
2 On appeal, complainant does not challenge an agency June 20, 2008
partial dismissal regarding claim 3. Therefore, we have not addressed
this issue in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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