01a45538
04-25-2005
Melvin Lopez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Melvin Lopez v. United States Postal Service
01A45538
April 25, 2005
.
Melvin Lopez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45538
Agency No. 4G-770-0208-03
Hearing No. 330-2004-00061X
DECISION
Complainant appeals to the Commission from the agency's August 5, 2004
decision finding no discrimination. Complainant alleges discrimination
on the bases of sex (sex) , age (date of birth: December 10, 1942), and
disability (heart, lumbar strain, and spine), when: (1) after January
2003, he was the only clerk assigned to work overtime at the end of his
tour and was assigned more strenuous and physically demanding duties; (2)
on February 22, 2003, his reporting time was changed from 0800 to 0900;
(3) on March 24, 2003, he was informed that he had to clear the medical
unit before he could return to work; and (4) on March 24, 2003, he was
denied light duty. After an investigation, an EEOC Administrative Judge
(AJ) issued a decision dated July 23, 2004, without a hearing, finding
no discrimination. Specifically, the AJ found that complainant did not
establish a prima facie case of sex or age discrimination because the
comparatives complainant points to are not similarly situated, as they
hold different positions. Further, the AJ found that assuming complainant
established a prima facie case of disability discrimination, complainant
did not submit a written request for a reasonable accommodation, and
thus, was not denied a reasonable accommodation. On August 5, 2004,
the agency issued a decision fully implementing the AJ's decision.
The agency, on appeal, argues that assuming complainant presented a
prima facie case, of sex, age, or disability discrimination, the agency
articulated a legitimate, nondiscriminatory reason which complainant
failed to adequately rebut. Specifically, the agency argues that the
agency actions were based on agency policies for injured employees,
the Collective Bargaining Agreement (CBA), and business needs.
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.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
The record indicates that complainant, during the relevant time in
question, worked as a full-time bulk mail entry clerk at the Sugar
Land, Texas Post Office. In November 2002, management added duties to
complainant's bulk mail duties, forcing him to work overtime. The record
indicates that two other employees were also made to work overtime.
Complainant, a few weeks later, developed an ulcer and was out on sick
leave. Upon returning to work, complainant was assigned the same duties.
Complainant asserts, in his affidavit, that in the beginning of 2003,
he put himself on the overtime list. The agency argues that complainant
was satisfied with the overtime until the holidays brought an increase in
mail volume. At this time, complainant's work time was changed to 9:00
from 8:00 a.m., with an hour lunch instead of 30 minutes. A management
affidavit indicates that prior to the change in work hours, the union was
consulted and agreed with the change. Management asserts that the change
allowed for more staffing in the window, more revenue, and less waiting
time for customers. In March 2003, complainant went to his doctor after
suffering a back injury while on vacation. Complainant, when returning
to work informed management that he was not �100%.� Thus, management
required him to clear the medical unit. The medical unit consulted
with complainant's doctor. Complainant's doctor suggested complainant
take two weeks off work. The record indicates, and complainant confirms,
that he never requested light duty. After two weeks, complainant returned
to work with the same duties.
The agency articulated legitimate, nondiscriminatory reasons for its
actions which complainant has failed to rebut. We find no genuine issue
of material fact in dispute. Further, we find that complainant has not
shown, by a preponderance of the evidence, that he was discriminated
against on the bases of sex, age, or disability. We make this
determination without making a finding as to whether complainant is an
individual with a disability under the Rehabilitation Act.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 25, 2005
__________________
Date