01A22873_r
01-07-2004
Edgar Maldonado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edgar Maldonado v. United States Postal Service
01A22873
January 7, 2004
.
Edgar Maldonado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22873
Agency No. 1C-191-0046-00
Hearing No. 170-A1-8047X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
The record reveals that complainant, a Mail Handler, PS-05, at the
agency's Philadelphia Air Mail Center in Philadelphia, Pennsylvania,
filed a formal EEO complaint on January 28, 2000, alleging that the
agency had discriminated against him on the basis of national origin
(Puerto Rican) when:
(1) on December 21, 1999, his manager shoved his hand into his chest;
and
(2) on December 22, 1999, he received notice that his job was abolished,
however, yet to date, the job has not been abolished.<1>
On June 28, 2002, the agency issued a document identified as "Partial
Acceptance/Partial Dismissal of Formal EEO Complaint." Therein, the
agency accepted claim (1) for investigation. The agency dismissed claim
(2) pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that the
matter raised in the instant formal complaint was not raised with an EEO
Counselor, and is not like or related to a matter for which complainant
underwent EEO counseling. Specifically, the agency found that there was
no record that complainant brought to the attention of an EEO Counselor
any matter relating to claim (2). The agency also found that on January
12, 2000, an EEO Counselor contacted complainant for clarification of
his claims and that complainant did not raise the issue of claim (2)
during the informal processing of the instant complaint.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On February 8, 2001, the agency filed a Motion
for a Decision Without a Hearing. Complainant submitted a response to the
agency's Motion. On May 23, 2001, the AJ issued a Fifteen-Day Notice,
which proposed issuing a Decision Without a Hearing, allowing the parties
to file a written response to the Notice. The record reveals that neither
party responded. Thereafter, the AJ issued a decision without a hearing,
finding no discrimination on November 6, 2001.
With respect to claim (1), the AJ concluded that complainant failed to
establish a prima facie case of hostile environment harassment on the
basis of complainant's national origin. The AJ noted that complainant
belonged to a statutorily protected class. However, the AJ determined
that complainant failed to establish that the alleged touching of his
chest, by his supervisor, was due to complainant's national origin.
The AJ further determined that the evidence of record supported a finding
that the supervisor's actions were done with the intention of breaking
up a potential physical altercation between complainant and a co-worker.
Finally, the AJ determined that even assuming that the supervisor had
shoved his hand in complainant's chest, this matter was an isolated
incident which was not severe enough to establish a claim of disparate
treatment.
The agency's final order implemented the AJ's decision finding no
discrimination (claim (1)).
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
"material" if it has the potential to affect the outcome of a 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.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Further, construing the evidence to be most favorable to complainant, we
note that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected class. Accordingly, the agency's final action implementing
the AJ's decision concerning claim (1) was proper and is AFFIRMED.
With respect to claim (2), complainant alleged that he was discriminated
against on the basis of national origin when, on December 22, 1999,
he received notice that his job was abolished, however, to date the job
has not been abolished. In a partial dismissal, dated June 28, 2002,
the agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(2),
on the grounds that the matter raised in the instant formal complaint
was not raised with an EEO Counselor, and is not like or related to a
matter for which complainant underwent EEO counseling. The AJ did not
address the agency's dismissal of claim (2). As the agency has issued
a final order on the remaining claim (claim(1)), this claim is now ripe
for adjudication.
A review of the Information for Precomplaint Counseling dated December
27, 1999, indicates that complainant did not bring the issue of receiving
a notice that his job was abolished to the attention of an EEO Counselor,
and that it is not like or related to matters for which complainant
underwent EEO counseling. Accordingly, the agency's decision to
dismiss claim (2) for failure to undergo EEO counseling was proper and
is AFFIRMED.
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
January 7, 2004
__________________
Date
1The record reveals that in his complaint, complainant alleged he was
discriminated against on the basis of race (Hispanic). The record
further reveals that complainant requested to have the basis of
discrimination changed to national origin (Puerto Rican).