0120091526
07-21-2009
Pure E. Melchizedek, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pure E. Melchizedek,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091526
Agency No. 1A-072-0036-07
Hearing No. 530-2008-00210X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 29, 2009 final action concerning his equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against him on the bases of race (African-American), national origin (Caribbean), sex (male), age (51), and in reprisal for prior EEO activity when:
on August 25, 2007, he was required to report to the Manager of Distribution Operations Office, was chastised, denied a break, and not permitted to drink fluids while other employees were afforded the same.
At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing. In her decision, the AJ dismissed the instant complaint pursuant to 29 C.F.R. 1614.107(a)(1), for failure to state a claim, finding that complainant was not aggrieved. Assuming that complainant was aggrieved, the AJ proceeded to analyze the instant complaint on the merits. The AJ determined that based on the record evidence, complainant failed to establish a prima facie case of discrimination based on race, national origin, sex, age and retaliation because he did not identify a similar situated individual who was treated more favorably under similar circumstances. The AJ found that the agency articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Complainant's supervisor (S1) stated that on August 25, 2007, he saw complainant eating on the work floor and told him "he could not eat on the work floor, and that he had to eat in the swing room, which is like a cafeteria, but he kept on eating." S1 stated that all employees "should know that they are not permitted to eat on the work floor." S1 further stated that the Manager, Distribution Operations (MDO) told complainant to go to the MDO office to talk to him about eating on the work floor. S1 stated that he and complainant's union steward (U1) were present when MDO talked to complainant. S1 stated that during the meeting complainant "wanted to talk about things other than eating on the floor. [Complainant] also told [MDO] that he was told not to eat in the swing room, but that was not true. When [MDO] asked [Complainant] who told him that, he did not know." S1 stated that he did not yell at complainant in the MDO office, and "[MDO] did not yell at him either." S1 stated that he had no knowledge of anyone chastising complainant "or anyone using profanity toward him." S1 stated that he also had no knowledge of complainant being denied a break. S1 stated "no employee can be denied a break. Every employee gets two breaks and a lunch." Furthermore, S1 stated that had no knowledge of complainant not being permitted to drink fluids and "the only fluid allowed on the work floor is water, but I have no knowledge of [Complainant] being told he could not drink other fluids."
MDO stated that after S1 notified him that he had a situation with complainant, he told complainant to report to the MDO office. MDO stated that S1, complainant and U1 were present in the office, and "we discussed the problem, which was that [Complainant] had stepped off the floor without authorization and he was found eating behind the containers, which is prohibited. The only action taken was to discuss with [Complainant] that he needed to make his supervisor aware when he left the floor." MDO stated that there is a directive from the Plant Manager that eating on the floor is prohibited "but I do not think it is in writing." MDO stated that complainant was never told he had to go to the MDO office because he was not supposed to be taking a break. Specifically, MDO stated "normally, when I have a dispute between employees, I take them off the work floor and into the floor so they will not cause a scene. No one yelled at [Complainant] in the office." MDO denied complainant's allegation that he was chastised and that he "did not hear any profanity used during the discussion in the MDO Office on August 25, 2007. The only thing that was said was that he had to follow the rules, and his union steward told him that as well." MDO stated that complainant was not denied a break and that after the meeting, he allowed complainant and U1 "to have the office to themselves for a time. Then [Complainant] was told to go to lunch." Finally, MDO stated that he was not aware that complainant "was ever told not to drink on the work room floor or not to go to the water foundation."
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, 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 action, 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 unlawful discrimination occurred.1
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
July 21, 2009
__________________
Date
1 Because we affirm the agency's final action implementing the AJ's finding of not discrimination for the reasons stated herein, we find it unnecessary to address the alternative disposition of the instant complaint on procedural grounds.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120091526
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091526
6
0120091526