0120080724
08-03-2009
Larry Callies, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry Callies,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080724
Hearing No. 460-2007-00098X
Agency No. 4G-770-0074-07
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. According to the agency's
decision, complainant alleges discrimination on the bases of race (Black)
and in reprisal for prior protected EEO activity when:
1. On or around November 6, 2006, the agency refused to remove a portion
of complainant's route.
2. On November 9, 2006, there was a conspiracy to commit fraud against
complainant when a co-worker filed a sexual harassment complaint against
complainant.
3. On January 29, 2007, complainant was forced to work overtime.
On February 2, 2007, the agency dismissed claim 2 for failure to state
a claim. On October 26, 2007, an EEOC Administrative Judge (AJ) issued
a decision without a hearing. As to claim 2, the AJ dismissed the claim
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
As to claims 1 and 3, the AJ found that there were no genuine issues
of material fact in dispute, and concluded that complainant had not
been discriminated against. Specifically, the AJ found that the agency
presented legitimate, nondiscriminatory reasons for its actions, which
complainant failed to rebut.
On October 31, 2007, the agency issued a decision dismissing claim 2
and finding no discrimination as to claims 1 and 3. The agency fully
implemented the AJ's decision. Complainant now appeals from that
decision.
Claim 2
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEC Request No. 05931049 (April 21, 1994).
We find that claim 2 fails to state a claim. The filing of an EEO
complaint by another individual does not constitute an injury to a term,
condition, or privilege of complainant's employment. The processing of
a complaint by an employee, wherein the employee challenges the filing
of an EEO complaint by a coworker or other agency employee, would have
a chilling effect on the filing of EEO complaints by aggrieved persons.
See Blinco v. Department of the Treasury, EEOC Request No. 05940194
(May 26, 1994).
Claims 1 & 3
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.
We find that the agency has articulated legitimate, nondiscriminatory
reasons for its actions. In regards to claim 1, the Sugarland Postmaster
(Postmaster) testified that complainant requested that the Postal Service
remove a portion of complainant's business deliveries. The Postmaster
stated that complainant's request was ultimately granted. However,
complainant's route became less than the required eight hours, so more
deliveries had to be added. In regards to claim 3, the Supervisor of
Customer Service (Supervisor) instructed complainant to work overtime due
to the fact that employees called in sick and there were many open routes.
The Supervisor explained that she first contacted all employees on the
overtime desired list. Once that list was exhausted, the Supervisor
contacted employees that were junior to complainant. After exhausting
that group, the Supervisor contacted complainant and requested that he
work overtime. Complainant failed to show that the agency's reasons are
pretext for discrimination. We find that complainant failed to show,
by a preponderance of the evidence, that he was discriminated against
on the bases of race or reprisal.
The agency's decision dismissing claim 2 and finding no discrimination
as to claims 1 and 3 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 3, 2009
__________________
Date
4
0120080724
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013