0120080718
07-01-2009
Charles J. Zingales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles J. Zingales,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080718
Hearing No. 532-2006-00104X
Agency No. 4C-440-0078-06
DECISION
Complainant filed an appeal with this Commission from the agency's
October 18, 2007 notice of final action concerning his complaint of
unlawful employment discrimination. Complainant alleges that he was
subjected to discrimination on the bases of race (Caucasian), color
(white), national origin (Sicilian), religion (Catholic), sex (male),
and age (62) when on January 23, 2006, complainant was issued a Notice
of Removal, which was subsequently reduced to a 14-day suspension in a
pre-arbitration settlement on February 8, 2006.
On September 28, 2007, an EEOC Administrative Judge (AJ) issued a decision
without a hearing finding that there was no genuine issue of material
fact in dispute, and concluded complainant had not been discriminated
against. Specifically, the AJ found the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On October 18, 2007, the agency issued a decision finding
no discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that 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 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.
We find that the agency articulated legitimate, nondiscriminatory reasons
for complainant's initial removal and eventual suspension. The Supervisor
of Customer Service (SOC) stated that she issued the Notice of Removal
to complainant because he constantly and on a daily basis refused to
follow management instructions often resulting in unauthorized use of
overtime. The SOC asserted that complainant was defiant, often hostile
and insubordinate. The SOC argued that she made every effort to correct
complainant's performance issues prior to issuing the Notice of Removal,
including bringing the union president in to meet with complainant and
management to eliminate the need for corrective action. The SOC said
that complainant was still determined to ignore management instructions
and became hostile.
The Manager of Customer Service (MOC) stated that she concurred with
the issuance of the Notice of Removal for complainant because he failed
to follow instructions. The MOC argued that every attempt was made by
her and the SOC to help complainant on his route; however, complainant
continued to return to the station late and was determined not to follow
management's instructions.
The Commission finds that complainant failed to rebut the
agency's articulated legitimate, nondiscriminatory reasons for its
actions. Complainant failed to show, by a preponderance of the evidence,
that he was discriminated against on the bases of race, color, national
origin, religion, sex or age.
The agency's notice of final action finding no discrimination is
AFFIRMED.
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
July 1, 2009
__________________
Date
5
0120080718
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013