0120091566
05-07-2009
Devendra K. Jain, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Devendra K. Jain,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091566
Agency No. 4A-100-0119-07
Hearing No. 520-2008-00163X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 13, 2009 final action concerning his 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.
Complainant alleged that the agency discriminated against him on the bases of national origin (Indian), religion (Jain [Hindu]) and in reprisal for prior protected activity when:
(1) he was allegedly threatened by management officials;
(2) he was denied T-time (overtime);
(3) on or about July 27, 2007, he was issued a Letter of Warning;
(4) he was denied requested days off; and
(5) he was requested to relinquish his time badge.
Following the investigation into his formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 31, 2008, the AJ issued a decision by summary judgment in favor of the agency. The agency fully implemented the AJ's decision in its final action.
The AJ found that complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of national origin, religion and retaliation. The AJ further found that complainant did not prove he was subjected to harassment sufficiently severe or pervasive so as to render his work environment hostile. The AJ noted in regard to claim (1), complainant was subjected to a pre-disciplinary interview as a result of being observed sleeping on duty, both electronically and by fellow supervisors. Regarding claim (2), the AJ noted while complainant worked overtime on twenty-one dates from April 25, 2007 through June 22, 2007, he was not given authorization to work overtime in every single day that he worked, and neither were his fellow supervisors.
Regarding claim (3), the AJ noted that complainant was verbally reprimanded for taking overtime without authorization, after he and his fellow supervisors had previously received an e-mail from the Acting Manager that they were not to work overtime without authorization. The AJ further noted that the record reflects that following a PDI, management issued complainant a Letter of Warning for taking overtime without authorization.
Regarding claim (4), the AJ noted that complainant was denied requested days off when a fellow supervisor had requested the time off before he did, and the workplace needed two of three total supervisors covering the operation at all times. Regarding claim (5), the AJ noted that according to the Station Manager, all supervisors, including complainant, were required to turn over their time badges to ensure that all badges were accounted for.
With respect to complainant's assertion that he did not get paid overtime on two separate occasions, the AJ concluded that complainant did not claim in his affidavit or provide any evidence showing that he did submit paperwork as suggested by the Acting Manager. The AJ noted in regard to complainant's assertion that he felt forced to bid to move to the Morgan facility due to the requirement to turn over his time badge, the record indicates that complainant acknowledges that he wanted to move to the Morgan facility due to his wife's serious illness. Finally, the AJ concluded that complainant did not prove, by a preponderance of the evidence, that the agency's proffered reasons for its action were a pretext for discrimination.
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.
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
May 7, 2009
__________________
Date
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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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