0120080112
10-30-2009
Dennis Maglasang,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Headquarters)
Agency.
Appeal No. 0120080112
Hearing No. 550-2007-00310X
Agency No. 66-000-0028-06
DECISION
Complainant filed an appeal with this Commission concerning his
complaint of unlawful employment discrimination. During the relevant
time, complainant was employed as a Postal Police Officer assigned to
the Security Force of the agency's San Francisco Inspection Service
Division. Complainant filed a complaint alleging that he was subjected
to discrimination on the bases of race (Filipino American), sex (male)
and in reprisal for prior EEO activity when, on March 8, 2006, complainant
was issued a 14-Day Suspension.
On August 7, 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 that complainant had not been discriminated
against as alleged. Specifically, the AJ found the agency presented
legitimate, nondiscriminatory reasons for its actions, which complainant
failed to rebut. On August 13, 2007, the agency issued a decision
finding no discrimination. The agency issued a notice of final action
fully implementing the AJ's decision.
Complainant filed an appeal following his receipt of the agency's
notice of final action. On appeal, complainant alleges that the AJ was
biased since his decision revealed that the AJ ignored some facts that
complainant submitted. Complainant also alleges that the AJ did not
help him when he asked the agency representative to request information
for some of the employee's personal files, including their disciplinary
records. The agency requests that we affirm its final 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.
In the instant case, we agree with the AJ that the material facts
are not in dispute and this matter is ripe for summary disposition.
We find that the AJ's decision properly summarized the relevant facts.
Regarding complainant's contentions, there is no evidence in the file
that demonstrates that the AJ was biased or failed to request relevant
documents. Moreover, we find the record in the present case was fully
developed for issuance of a decision.
Further, we find that the agency articulated legitimate, nondiscriminatory
reasons for issuing complainant a 14-Day Suspension. The Responsible
Management Official (RMO) stated that complainant was issued a 14 day
no time-off suspension for the following reasons: Charge 1, Conduct
Unbecoming a Postal Police Officer: Specification 1, disseminating
disrespectful and inflammatory statements concerning other postal
Inspections Service personnel through the agency's electronic mail
system; and Specification 2, insubordination and disrespect toward
immediate supervisor; Charge 2, Dereliction of Duty: Specification 1,
intentionally failing to communicate sensitive information to another
postal police officer; and Specification 2, intentionally refusing
to assist a fellow postal police officer. The RMO also stated that
complainant's previous discussions concerning his unprofessional conduct
towards fellow officers and failure to follow the chain of command;
and complainant's unprofessional conduct towards an acting supervisor
and failure to follow the chain of command were factors in complainant
receiving the 14 day suspension.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for its action.
Moreover, complainant failed to show, by a preponderance of the evidence,
that he was discriminated against on the bases of race, sex or reprisal.
The agency's decision 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
October 30, 2009
__________________
Date
2
0120080112
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013