01986226
05-18-2001
Joseph Raiola, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joseph Raiola v. United States Postal Service
01986226
May 18, 2001
.
Joseph Raiola,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986226
Agency No. 4F913004497
DECISION
Complainant timely initiated an appeal from the agency's final decision
dated July 10, 1998, 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 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 alleges he was discriminated against
on the bases of sex (male) and age (40), when on or about October 29,
1996, he was suspended for 7 days, for failing to follow a direct order
to wear a uniform at the customer service window.
BACKGROUND
The record reveals that complainant, a PS-5 Distribution Window Clerk
in the Sylmar, California Post Office, filed a formal EEO complaint
with the agency on February 4, 1997, 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 agency adopted the AJ decision.
The AJ concluded that complainant failed to establish a prima facie case
of sex and age discrimination. Specifically, the AJ found that there were
no similarly situated employees who did not follow a direct order to wear
a uniform who were not disciplined, or who were disciplined less harshly.
The agency noted that no employee had ever disobeyed a direct order to
appear in uniform and complainant failed to rebut this evidence in any
way. Also, the AJ concluded that there is no evidence that the agency's
explanation for its action was a pretext for age and sex discrimination.
In response to complainant's arguments that he observed four coworkers<1>
working at the window without a uniform, the agency stated that
these individuals never failed to report to work in uniform after
being specifically ordered to do so by management. The AJ argued
that all clerks, including complainant are required to wear a uniform
while working at the window. The AJ noted that on October 29, 1996,
management instructed complainant to report to work the following day
in uniform and complainant failed to obey this instruction. The AJ
concluded that complainant was suspended, instead of lesser discipline,
because of a previous Letter of Warning in March, 1996.
Complainant did not raise any contentions on appeal.
ANALYSIS AND FINDINGS
Our decision on the instant appeal shall be based on a de novo review
of the record. See 29 C.F.R. � 1641.405 (a).
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
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgement 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)
(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 judgement). 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); Oliver v. Digital Equip. Corp.,
846 F. 2d 103, 105 (1st Cir. 1988). If a case can only be resolved by
weighing conflicting evidence, summary judgement is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgement only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, we find that the AJ's decision
to issue a finding of no discrimination without a hearing was proper.
The AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We note that complainant
failed to establish a prima facie case of discrimination. Although he
argued that others had worked at the window without a uniform, he did
not dispute the agency's contentions that no other employee ever failed
to report to work in uniform after being given a direct order to do so.
Nor did complainant submit any other evidence sufficient from which to
meet this initial burden. Moreover, complainant failed to submit any
evidence rebutting the agency's articulated reasons or showing that his
sex or age played any role in the agency's determination to suspend him.
Therefore, we find that complainant failed to raise a genuine issue of
material fact in regard to the agency's explanation for his behavior.
Accordingly, we find that complainant failed to meet his burden of
establishing, by a preponderance of the evidence, that the agency's
explanation for suspending him for seven (7) days was a pretext for
discrimination.
Therefore, after a careful review of the record and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
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
May 18, 2001
_________________________
Date
1 Two females, 39 and 27 years old; and two
males, 27 and 30 years old.