01a05780
11-15-2000
John Brodit, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific Area), Agency.
John Brodit v. United States Postal Service
01A05780
November 15, 2000
.
John Brodit,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01A05780
Agency No. 4F-945-0115-98
Hearing No. 370-98-X2700
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges he was discriminated
against on the bases of race (Asian-Fillipino), and physical disability
(ruptured/herniated disc, lower back), when, on February 5, 1998, he was
issued a Notice of Removal. For the following reasons, the Commission
AFFIRMS the agency's final order.
The record reveals that complainant, then a City Carrier, at the agency's
Antioch, California facility, filed a formal EEO complaint with the
agency on March 19, 1998, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on either bases. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees not in
his protected classes were treated differently under similar circumstances
when they were involved in physical altercations. Although complainant
cited other comparators who he argued were not issued a Notice of Removal
after being involved in a physical altercation with a co-worker, the
AJ found that comparators were not proper because they did not have the
same supervisor as complainant.
The AJ further concluded that the agency articulated legitimate, non
discriminatory reasons for its actions. The AJ found that complainant was
issued the Notice of Removal for being involved in a physical altercation
with a co-worker.
The AJ also found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found that
complainant failed to establish that a genuine issue of material facts
existed regarding the reasons for his termination.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that others have been involved in similar
activity and have not been terminated from the agency. In response to
complainant's appeal, the agency asks that we affirm its final order.
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. This regulation is patterned after the summary judgment procedures
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when "material facts are not in genuine dispute."
29 C.F.R. � 1614.109(g). Only a dispute over facts that are truly
material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgment). For example, when a complainant is unable to
set forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element of
the case would not be material to the outcome. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986). EEOC Management Directive 110 (MD-110), at 7-15
( November 9, 1999). The Commission will apply a de novo standard of
review when it reviews an AJ's decision to issue a decision without a
hearing pursuant to 29 C.F.R. � 1614.109(g). See EEOC MD-110, at 9-16.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
does not deny his involvement in the physical altercation. We also note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
race and/or disability. Both management officials averred they were
unaware that complainant suffered from a disability. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 15, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.