01A34941_r
01-23-2004
Robert C. Andrade, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert C. Andrade v. United States Postal Service
01A34941
January 23, 2004
.
Robert C. Andrade,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34941
Agency No. 1B-029-0028-02
Hearing No. 160-A3-8372X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
The record reveals that complainant, a Mail Processor, at the agency's
Providence Processing and Distribution Center in Providence, Rhode Island,
filed a formal EEO complaint on October 9, 2002. Therein, complainant
claimed that the agency discriminated against him in reprisal for prior
protected activity when:
(1) since August 14, 2000, he has been subjected to ongoing harassment
by an agency supervisor; and
(2) his request for a temporary change of schedule for October 4, 2002,
was denied.
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,
following submission of an agency motion for a decision without a hearing,
finding no discrimination.
Regarding claim (1), the AJ noted that complainant's harassment claim
encompasses a �litany of examples� including the supervisor speaking
rudely to him; questioning, insulting, and criticizing his work;
warning him that continued use of the bathroom would require medical
documentation; failing to provide him with a union steward; and officially
reprimanding him for hitting the emergency stop inappropriately.
The AJ determined that these matters were insufficient to establish a
prima facie case of harassment, as they were not sufficiently patterned
or pervasive.
Regarding claim (2), the AJ concluded that complainant failed to establish
a prima facie case of discrimination based on reprisal. The AJ further
concluded that there was no nexus between the agency's actions and
the complainant's prior EEO activity. As a result, the AJ found that
complainant failed to demonstrate, by a preponderance of the evidence,
that his supervisor and manager were motivated by a discriminatory animus
based on reprisal.
Furthermore, the AJ determined that assuming arguendo that complainant
had established a prima facie case of reprisal discrimination, the agency
articulated legitimate, non-discriminatory reasons for its actions.
Regarding claim (1), the AJ found that the testimony of complainant's
supervisor indicated that the determination to discipline complainant
was based on complainant having been counseled in the past for his
poor performance; and that complainant was reprimanded for hitting
the emergency stop on October 1, 2002, because such action is only
used in the case of personal injury, mail damage or equipment damage.
The AJ found that none of these circumstances existed when complainant
activated the emergency stop.
Regarding claim (2), the AJ found that in his affidavit, complainant's
Manager stated that he based his reasons on approving or denying
employees' Change of Schedule (COS) requests on the operational needs
of the agency. The AJ further noted that the Manager stated that even
though he denied complainant's request for a temporary COS for October 4,
2002, he informed complainant that management would nevertheless try
to accommodate him when the requested date approached. The Manager
stated that he did not deny complainant's COS for October 4, 2002,
because of his poor work performance but based on the operational needs.
The agency's final action implemented 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. 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.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected class. The agency final action implementing
the AJ's finding of no discrimination is therefore 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
January 23, 2004
__________________
Date