01a40924
02-24-2005
Gary W. Somerville, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary W. Somerville v. United States Postal Service
01A40924
February 24, 2005
.
Gary W. Somerville,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40924
Agency No. 4G-760-0291-02
Hearing No. 310-2003-05219X
DECISION
Complainant timely initiated an appeal from the agency's final
action concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405.
Complainant, a Letter Carrier at the agency's Jordan Station in Amarillo,
Texas, filed a formal EEO complaint on October 10, 2002, claiming that
the agency discriminated against him on the bases of disability (left
shoulder), age (D.O.B. 6/4/51), and in reprisal for prior EEO activity
when<1>:
on July 3, 2002, he was given a pre-disciplinary interview and ordered to
sit in a chair during the meeting and he was issued a Letter of Warning
dated July 5, 2002.
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 July 23, 2003, the AJ issued a Notice of
Intent to Issue a Decision Without a Hearing, allowing the parties to
file a written response to the Notice.
On October 1, 2003, the AJ issue a decision finding no discrimination.
Regarding complainant's claim that he was told to sit down during a
pre-disciplinary hearing, the AJ concluded that complainant was not
an aggrieved individual. Regarding the Letter of Warning, the AJ
concluded that complainant failed to establish a prima facie case of age
discrimination. The AJ concluded that complainant established a prima
facie case of reprisal discrimination because management was aware of
his prior protected activity. The AJ noted that the agency articulated
legitimate, non-discriminatory reasons for its actions, namely that the
Supervisor stated that complainant was given a pre-disciplinary interview
and issued a Letter of Warning for failure to follow his Supervisor's
instructions. Finally, the AJ found that complainant failed to proffer
any evidence to rebut the agency's articulated reasons for its actions.
On October 28, 2003, the agency issued a Notice of Final Action wherein
it implemented the AJ's decision finding no 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.
The agency articulated legitimate, nondiscriminatory reasons for its
employment actions. The agency determined that complainant was given a
pre-disciplinary hearing and issued a Letter of Warning for failure to
follow his Supervisor's instructions to provide auxiliary assistance to
another letter carrier. The record in this case contains an affidavit
from complainant's Supervisor. Therein, the Supervisor stated that he
gave complainant a pre-disciplinary interview for "failure to follow
instructions." The Supervisor further stated that he asked complainant
to sit in a chair but complainant refused. The Supervisor stated that
complainant stood during the entire interview, and that at "no time did I
order him to sit down." Regarding the Letter of Warning, the Supervisor
stated that "the only factor I took into consideration when deciding
to issue a letter of warning was the fact that [Complainant] failed to
follow the instructions given on 6/28/2002." The Supervisor stated that
he based his determination to issue complainant a Letter of Warning under
Section 112.21 of the M-41 Carrier's Handbook. The Supervisor stated that
Section 112.21 "clearly states �Obey the instructions of your Manager.'"
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 classes.
The agency's final action implementing the AJ's finding of no
discrimination is therefore 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
February 24, 2005
__________________
Date
1The record reveals that in an Investigative
Affidavit dated December 7, 2002, complainant withdrew the basis of
disability.