01a52251
02-16-2006
John Sacramone, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John Sacramone v. United States Postal Service
01A52251
February 16, 2006
.
John Sacramone,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52251
Agency No. 4B-018-0032-03
Hearing No. 160-2004-00006X
DECISION
Complainant filed an appeal from the agency's final action dated December
23, 2004, finding no discrimination with regard to his complaint.
In his complaint, dated February 3, 2003, complainant, a full time
Letter Carrier, alleged discrimination based on disability and in
reprisal for prior EEO activity when: (1) on December 20, 2002, (a)
he was forced to work overtime on his non-scheduled day, and (b) he was
required to seek medical attention to obtain documentation to support
his claim that he was unable to work overtime; (2) upon his return to
work on December 26, 2002, he was threatened with a fitness-for-duty
examination and a permanent transfer; (3) his Postmaster attempted to
dissuade his representative from representing him in the EEO process;
and (4) during a pre-complaint mediation conducted on January 16, 2003,
he was belittled and insulted by the Postmaster.
On March 13, 2003, the agency notified complainant that claim (4)
was dismissed for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). With regard to the remaining claims, complainant
requested a hearing before an EEOC Administrative Judge (AJ) following
the investigation. On December 20, 2004, the AJ issued a decision
without holding a hearing finding no discrimination.
The agency's final action implemented the AJ's decision. With regard
to claim (4), complainant claimed that the Postmaster made insulting
remarks toward him. However, since the remarks were allegedly made
during the mediation of the complaint wherein which the parties were
trying to resolve the subject matter, the Commission finds that such a
claim regarding mediation fails to state a claim. Further, �[s]ettlement
negotiations, including any statements or proposals, are to be treated
as confidential and privileged to facilitate a candid interchange to
settle disputes informally.� See Harris v. Department of the Navy, EEOC
Request No. 05941002 (March 23, 1995). To allow complainant to file a
new complaint regarding the comments made by an agency representative
during settlement negotiations of a previously filed EEO complaint would
defeat this purpose. See Millea v. Department of Veterans Affairs, EEOC
Request No. 05980235 (May 21, 1998); Montague v. Department of the Army,
EEOC Request No. 05920231 (May 2, 1992). Similarly, confidentiality is
considered one of the �Core Principles� of Alternative Dispute Resolution
(ADR). �Parties who know that their ADR statements and information are
kept confidential will feel free to be frank and forthcoming during the
proceeding, without fear that such information may later be used against
them.� See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1615. (EEO MD-110), 3-16, 3-17 and Appendix H (Nov. 9, 1999).
Thus, the Commission finds that the agency properly dismissed claim (4).
Turning to the remaining claims, to which the AJ issued the summary
judgment at issue, 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.
Upon review, the Commission finds that the AJ's grant of summary
judgment was appropriate, as no genuine dispute of material fact exists.
The AJ, incorporating the agency's motion for findings and conclusions
without hearing, stated, and we agree, that the alleged actions, either
individually or whole, do not rise to the level of actionable harassment.
The AJ also stated that had complainant established a prima facie case
of discrimination, he still would not prevail as the agency articulated
legitimate non-discriminatory reasons for its actions and those reasons
were not successfully rebutted by complainant.
Specifically, with regard to claim (1), a Customer Services Supervisor
stated that on the relevant incident date, complainant was asked to
work on his day off due to its operational needs of the service during
the Christmas holiday season. She indicated that complainant came in
work on that day, but after pitching up his route, he went home stating
his ankle was sore and swollen. After conversing with the Postmaster,
the Supervisor requested that complainant bring medical documentation to
support his inability to work. Complainant provided the documentation
which management deemed acceptable. There is no evidence in the record
that complainant was issued any adverse action due to his leaving early
on the relevant incident date.
With regard to claims (2) and (3), there is no evidence in the record that
complainant was actually subjected to a fitness-for-duty examination or a
permanent transfer. Furthermore, there is no evidence that complainant's
representative subsequently withdrew from representing complainant as a
result of the Postmaster's actions. Complainant's immediate supervisor
and the Postmaster stated that on a number of occasions complainant
threatened to file an EEO complaint against them if they talked to him
about their concerns about his performance. It is noted that complainant
was subsequently approved for a voluntary disability retirement on March
19, 2004.
After a review of the record, the Commission finds that the agency
articulated legitimate, non-discriminatory reasons for the alleged
actions. The Commission also finds that complainant failed to provide
any evidence that the articulated reasons were pretextual or that any
agency action was motivated by discrimination.<1>
Accordingly, the agency's decision dismissing claim (4) and finding no
harassment and/or no discrimination with regard to the remaining claims
of the complaint 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
February 16, 2006
__________________
Date
1The Commission does not address in this
decision whether complainant is a qualified individual with a disability.