0120093540
01-21-2010
Robert Fragosa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert Fragosa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093540
Agency No. 4F-926-0074-08
Hearing No. 480-2008-00532X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 23, 2009 final action 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.
On March 28, 2008, complainant filed the instant formal EEO complaint.
Therein, complainant claimed that the agency discriminated against him on
the bases of disability (generalized anxiety and stress) and in reprisal
for prior protected activity when:
1. on November 1, 2007, he was placed on Emergency Off-Duty status; and
2. on January 7, 2008, he was issued a Notice of Proposed Removal which
was reduced to a 14-Day Time Served Suspension.
Following the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ).1 On July 8, 2009, the AJ issued a
decision by summary judgment in favor of the agency. On July 23, 2009,
the agency fully implemented the AJ's decision in its final action.
The AJ found that complainant did not establish a prima facie
case of disability discrimination.2 The AJ further found that
assuming complainant established a prima facie case of disability
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a pretext
for discrimination. The AJ found, however, complainant established a
prima facie case of reprisal discrimination. The AJ nonetheless found
that the agency articulated legitimate, nondiscriminatory reasons for
its actions which complainant failed to show were a pretext.
Regarding claim 1, the AJ noted that on October 30, 2007, the Postmaster
(PM) was notified by a shop steward (SS) and complainant's co-worker (CW)
that complainant had made unspecified threats. The AJ further noted that
PM then contacted the Postal Inspector to discuss a possible verbal threat
involving complainant. The AJ noted that on or about November 11, 2007,
the Postmaster (PM) placed complainant on an emergency off-duty status
pending investigation regarding his alleged threats. Specifically,
PM stated that he placed complainant on an emergency off-duty status
"because we have a zero tolerance to this type of threat."
The AJ noted that during her interview with the Postal Inspectors, CW
stated that on October 29, 2007, complainant was in the back office with
her and expressed frustration that he was being required to learn the city
scheme as a condition of his pending bid assignment; and complainant said
'something about shooting people and began to make shooting gestures
with his hands.'" The AJ further noted that CW stated that she did
not take complainant's threats as being serious but that complainant
"was very frustrated with his work situation and could snap and do it."
The AJ noted in the postal inspector investigation, complainant denied
allegations that he threatened management. Complainant stated that he did
not agree with the way management was operating; felt that he was being
"blackballed"; and felt that management eliminated his position just to
get rid of him. The AJ noted PM stated that on November 18, 2007, he
met with complainant concerning the witness statements and complainant
"later admitted to making the comments and said he was just joking."
Regarding claim 2, the AJ noted that based on the Postal Inspector's
Investigative Report and complainant's admissions, PM issued complainant
a Notice of Proposed Removal dated January 7, 2008 for "unacceptable
conduct/threatening behavior." On January 23, 2008, MPOO met with
complainant to discuss the Notice of Proposed Removal. During the
meeting, complainant agreed to accept a reduction of the Proposed Removal
to a 14-day suspension on the condition that he undergo training to
improve his interpersonal skills.
The AJ noted that MPOO stated that on January 23, 2008, he issued
complainant a Letter of Decision in response to his appeal concerning the
Notice of Proposed Removal dated January 7, 2008. MPOO further stated
that a determination was made "based on an agreement with the complainant
that he would accept a 14-day suspension in lieu of a removal and I would
arrange for him to attend a class to improve his interpersonal skills with
his co-workers and supervisors. I also agreed that I would meet with the
complainant after he finished his training, which I did. I further agreed
we would meet again in approximately six months to determine if I would
further reduce the 14-day suspension to a lesser form of discipline."
On appeal, complainant contends that the AJ erred in granting summary
judgment in favor of the agency because there are genuine issues
of material fact. Complainant argues that the agency's articulated
reasons for its actions are pretextual because CW "stated she did not
take appellant's alleged threats as being serious." Complainant further
states "numerous errors of facts are made in the Administrative Judge's
decision. Clearly no threat existed and there is the appearance that [CW]
was influenced by [SS] to report the alleged incident to management."
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.
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
January 21, 2010
__________________
Date
1 On April 12, 2008, the agency issued a partial dismissal. Therein, the
agency accepted claim 2 for investigation. However, the agency dismissed
claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29
C.F.R. � 1614.107(a)(2). The record reflects that although the agency
dismissed claim 1 on these grounds, the agency nevertheless conducted
an investigation concerning claims 1 and 2.
2 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
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0120093540
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093540