Leslie A. McCauley, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/West Region), Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01a03370 (E.E.O.C. Aug. 2, 2000)

01a03370

08-02-2000

Leslie A. McCauley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/West Region), Agency.


Leslie A. McCauley v. United States Postal Service

01A03370

August 2, 2000

.

Leslie A. McCauley,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Pacific/West Region),

Agency.

Appeal No. 01A03370

Agency No. 4E-800-1099-96

Hearing No. 320-97-8394X

DECISION

Complainant timely initiated an appeal from a final agency action

concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, 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.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405). Complainant alleges he was discriminated

against on the bases of sex (male) and age (DOB: October 7, 1949)

when the Station Manager allowed a younger, female candidate for Union

President the opportunity to give a stand up to employees at the Ivywild

Station while the Station Manager denied him the same opportunity.

Complainant was given an opportunity to give a stand up, however he

alleges that he was informed by a Department of Labor investigator that

he would be arrested for speaking. Finally, complainant believes that

the Station Manager's denial of the same opportunity to give a stand

up resulted in his loss of the election. For the following reasons,

we AFFIRM the agency's final action.

The record reveals that during the relevant time, Complainant was

employed as a Letter Carrier at the agency's facility in Colorado

Springs, Colorado. Believing he was a victim of discrimination,

complainant sought EEO counseling and, subsequently, filed a formal

complaint on January 20, 1996. 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). The AJ notified

both parties that it appeared that the complaint contained no issues of

material fact. Neither party objected to a decision without a hearing.

The AJ issued a decision without a hearing finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie case

of sex and age discrimination, noting that complainant's allegation did

not create an inference of discrimination. In particular, the AJ found

that although complainant believed that the Station Manager's action

cost him the election, complainant failed to present evidence that the

stand up given by the female employee had any affect on the election.

Finally, the AJ found that complainant failed to provide competent

evidence regarding his assertion that he would have been arrested if he

accepted the agency's offer to speak at a stand up.

The AJ then concluded that the agency proffered legitimate,

nondiscriminatory reasons for its action, namely that it offered

complainant the same opportunity but he declined. The AJ then concluded

that complainant failed to demonstrate by a preponderance of the evidence

that he was discriminated against under any of his alleged bases.

The agency's final action implemented the AJ's decision.

On appeal, complainant contends, among other things, that the AJ and

the agency failed to provide complainant with the remedy granted to him

in McCauley v. United States Postal Service, EEOC Appeal No. 01963359

(November 22, 1996). The agency stands on the record and requests that

we affirm its final action implementing the AJ's decision.

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 United

States Supreme Court has stated that summary judgment is appropriate

where the trier of fact determines that, given applicable substantive

law, no genuine issue of material fact exists. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the

evidence is such that a reasonable fact-finder could find in favor of the

non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st

Cir. 1988). In the context of an administrative proceeding under Title

VII, summary judgment is appropriate if, after adequate investigation,

complainant has failed to establish the essential elements of his or

her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173

(3d Cir. 1988). In determining whether to grant summary judgment,

the trier of fact's function is not to weigh the evidence and render a

determination as to the truth of the matter, but only to determine whether

there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.

After a careful review of the record, we find the AJ properly determined

that there was no genuine issue of material fact in this case. Moreover,

complainant does not dispute the AJ's determination that there is

no genuine issue of material fact. Therefore, we concur in the AJ's

determination and find that summary judgment was appropriate in this

case.

Based on our careful de novo review of the entire record before us,

the Commission finds that the AJ's recommended findings and conclusions

properly summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We conclude that complainant failed

to establish by preponderant evidence that the agency's action was

motivated by discriminatory animus toward complainant's sex or age.

As to complainant's contention on appeal that the agency and AJ failed

to implement the Commission's previous decision, we find no merit to

his assertion.<2> Accordingly, we discern no basis to disturb the AJ's

recommended findings and conclusions or the agency's adoption of the

AJ's decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

August 2, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The Commission notes that the previous decision cited by complainant

reversed the agency's dismissal of his complaint and remanded the

complaint for investigation in conjunction with the decision and

applicable regulations. The previous decision made no determination of

the merits of complainant's complaint and did not award complainant any

remedy.