0120092319
11-13-2009
Louis S. Mancusi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Louis S. Mancusi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092319
Hearing No. 520-2009-00126X
Agency No. 1A-119-0008-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 30, 2009 final order 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The record reflects that complainant is a Building Equipment Mechanic
at an agency facility in Garden City, New York. On July 14, 2008,
complainant filed the instant formal complaint. Therein, complainant
claimed that he was the victim of unlawful employment discrimination
on the bases of national origin (Italian), disability (sleep apnea),
and reprisal in reprisal for prior protected activity when:
on March 6, 2008, he was placed on an Emergency Placement
Off-Duty status without pay and subsequently issued a
Notice of Removal on March 24, 2008, for failure to work
in a safe manner.
Following an agency investigation, complainant was given the choice
of either a final agency decision, or a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The
AJ issued a decision without a hearing finding no discrimination.
The AJ found that complainant did not establish a prima facie case of
disparate treatment based on national origin, prior EEO activity or
physical disability. 1 The AJ nevertheless found that the agency has
articulated a legitimate non-discriminatory reason for its action. The
AJ noted that on March 6, 2008, complainant threw, from a roof, three
boxes containing air filters, resulting in injury to a co-worker who was
below; that the agency assessed complainant's actions as unsafe worksite
behavior, which resulted in a co-worker's injury; and that the agency
properly placed complainant in an off-duty status and later issued a
Notice of Removal for failure to work in a safe manner. The AJ noted
further that pursuant to a Grievance Arbitration the agency allowed
complainant to return to duty on April 23, 2008, and on April 30, 2008,
the Notice of Removal was modified to a twenty-one day suspension.
The AJ found, moreover, that complainant did not allege a single instance,
in which another similarly situated employee engaged in an unsafe worksite
manner, injured a co-worker, yet received no Notice of Removal from the
agency. The AJ further found that complainant has not demonstrated that
the agency's action was motivated by a discriminatory animus based on
complainant's national origin, his prior EEO activity or his physical
disability.
The Commission's regulations allow an AJ to issue a decision without
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 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, 245
(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, 322-323 (1986). The AJ may properly issue a decision without
a hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No.0120024206 July 11, 2003).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie case inquiry
may be dispensed with in this case, since the agency has articulated
legitimate and nondiscriminatory reasons for it conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983). To ultimately prevail, complainant must prove, by a
preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc. 530 U.S.133, 120 S. Ct. 2097 (2000).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 trend 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
November 13, 2009
__________________
Date
1 The Commission presumes for purposes of analysis only, and without so
finding, that complainant is an individual with a disability.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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