0120130224
02-25-2013
Kevin S. Kubrick, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Kevin S. Kubrick,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120130224
Hearing No. 530-2011-00109X
Agency No. 4C-150-0102-10
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 29, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Carrier Technician at the Agency's Upper St. Clair Post Office in Pittsburgh, Pennsylvania.
On September 2, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of sex (male) when:
he was not paid for May 22, 2010.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On July 18, 2012, the AJ issued notice of her intent to issue a decision without a hearing, to which both parties responded. On August 20, 2012, the AJ issued a decision by summary judgment in favor of the Agency. On August 29, 2012, the Agency issued a final action that fully implemented the AJ's decision finding no discrimination.
In her decision, the AJ found no discrimination. Specifically, the AJ found that Complainant did not establish a prima facie case of sex discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The AJ noted that on May 22, 2010, Complainant reported off duty. Complainant requested sick leave for his May 22, 2010 absence. The Supervisor Customer Services, Complainant's supervisor, stated that she made a determination to deny Complainant's sick leave for May 22, 2010 due to his failure to provide evidence proving that he was incapacitated from work. Specifically, the supervisor stated that Complainant "had not given me sufficient reason to feel he was incapacitated for work. ELM section 513.34 does give supervisors the right to deny sick leave."
The supervisor stated that following the denial of his leave request, Complainant filed a grievance. As a result, a settlement "was made to pay [Complainant] sick leave. There was some delay in payment due to the inability to pay grievance settlements in Adjustpay and my not having access to GATS. However, this delay applied to everyone who grieved for sick leave payment, there was nothing personal about it, and it is my understanding that everyone involved has since been paid."
Complainant asserted that female employees were able to receive their sick leave without any problems. The supervisor stated that during the relevant period she denied sick leave for several named female and male employees. The supervisor stated that she requested and received the named employees' medical documentation indicating their absences were illness related; and she made changes to their leave requests and adjusted their pay.
Complainant, on appeal, argued that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant stated that he asked the AJ to "take up the manner in which the Postal Service conducted the Initial Investigation in this case. The documentation should have been included in the Case File that the Postal Service provided to the EEOC. A number of flagrant objections with the Initial Investigation were even documented with the Postmaster General. There has been no ruling on this issue in the Judge's Decision and therefore, I am again requesting that the EEOC investigate this hostile activity of the Postal Service."
The instant appeal followed.
ANALYSIS AND FINDINGS
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.
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation.
The Commission also determines that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's sex. We discern no basis to disturb the AJ's decision without a hearing, finding no discrimination.
The Agency's final action implementing the AJ's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 25, 2013
__________________
Date
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0120130224
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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