0120072473
06-25-2009
Richard G. Woods, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard G. Woods,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072473
Hearing No. 250200500312X
Agency No. 4G720004305
DECISION
On April 25, 2007, complainant filed an appeal from the agency's March
27, 2007 final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Maintenance Custodian at the agency's West Helena Post Office in
Helena, Arkansas. Complainant suffered an injury to his back in 2004,
and during the events in question was limited to lifting no more than
25-30 pounds.
On April 20, 2005, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of disability (back), age
(DOB: 8/1945), and in reprisal for prior protected EEO activity when:
(1) on or around January 24, 2005, he was given an assignment of duties
as a result of a modified job offer on May 3, 2004, for which he was
not given a higher level of pay; and (2) on February 24, 2004, he was
denied Continuation Of Pay (COP).
On June 23, 2005, the agency issued a partial dismissal, finding that
Issue 2 was not timely raised with an EEO Counselor. Specifically,
the agency found complainant contacted an EEO Counselor on January 27,
2005, which is well over 45 days from the date complainant was allegedly
denied COP.1 The agency accepted Issue 1 for an investigation, and at
the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On March 17, 2006, the agency filed a motion for
a decision without a hearing. Complainant did not respond. On June 5,
2006, the AJ issued a Notice to Show Cause why summary judgment should
not be issued because complainant failed to show he suffered an adverse
action, and failed to explain why he was due a higher salary.
On March 15, 2007, the AJ issued a decision finding no dispute of
material fact such that a hearing was necessary to resolve the issues.
Specifically, the AJ found that, although complainant was over 40 years
of age, he failed to identify any similarly-situated individuals outside
of his protected class who were treated more favorably under similar
circumstances. The AJ further found that the agency's description of
job duties did not constitute an adverse action. As for his disability
claim, the AJ found complainant was not an individual with a disability,
because the medical documentation in the record revealed only that he
was restricted from lifting over 30 pounds. Moreover, the AJ found
this documentation did not place the agency on notice that complainant
suffered from a disability. Finally, with respect to his claim of
retaliation, the AJ found complainant did not establish he had ever
engaged in prior protected activity. Accordingly, the AJ found no issues
of credibility, and as such, no dispute of fact. On March 27, 2007,
the agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that he timely contacted an EEO Counselor
with respect to the denial of COP claim. He also maintains that
the list of duties given to him involved Level 5 assignments, and he
should have been paid accordingly. In response, the agency argues that
complainant is not an individual with a disability, did not present
sufficient evidence that would raise an inference of age discrimination,
and failed to establish that he had ever engaged in prior EEO activity.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding 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. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
As an initial matter we find that the agency was correct in dismissing
complainant's claim that he was denied COP, as he failed to contact an
EEO Counselor within 45 days of the date he was denied COP. Moreover,
the Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). The proper forum for complainant
to have raised his challenges to actions which occurred during the
workers' compensation process is within that proceeding itself. It is
inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the workers' compensation process.
Complainant is complaining about matters squarely within the jurisdiction
of the Department of Labor; continuation of pay and the amount he was
paid. If he wishes to pursue his claims he should raise them within
the workers' compensation process.
After a careful review of the record, we find the AJ's decision to issue
a decision finding no discrimination with respect to Claim 1 without a
hearing was appropriate, as no dispute of material fact exists. Assuming,
without deciding, that complainant is an individual with a disability,
we find he failed to present evidence that he was treated differently
than anyone outside of his protected class, and failed to establish
that he had ever engaged in prior EEO activity. Complainant failed to
present evidence of anyone who, after receiving such a list of duties,
was awarded the Level 5 pay. Further, he failed to explain why he
believed he was entitled to a higher level of pay, stating only generally
that he was being harassed due to his workers' compensation dispute.
Complainant's supervisor averred that all duties assigned were within his
Level 4 job description. Complainant failed to dispute this evidence
and failed to otherwise establish that the agency's reasons for paying
him at the Level 4 salary were a pretext to discriminate or retaliate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final action.
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
June 25, 2009
Date
1 Complainant also filed a grievance over this issue, which was settled
on or about April 12, 2005.
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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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