0120072562
06-09-2009
Roy Gray, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roy Gray,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072562
Hearing No. 520200700096X
Agency No. 1A102003706
DECISION
On May 8, 2007, complainant filed an appeal from the agency's April
3, 2007 final order 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. 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 an Electrician, PS-07, at the agency's James A. Farley Post Office
located in New York City. On August 4, 2006, complainant filed an
EEO complaint alleging that he was discriminated against in reprisal
for prior protected EEO activity when on May 3, 2006, he was denied a
promotion to the position of Electronic Technician, Level 11.
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 28, 2007, complainant filed a Motion
to Amend his complaint, alleging that the agency also subjected him
to unlawful race discrimination on a separate matter. The AJ denied
complainant's Motion to Amend, stating that complainant "should contact
an EEO counselor with regards to his claims stated in the [Motion]."
(AJ Decision at 2). The AJ found that, after viewing the evidence in
a light most favorable to complainant, a decision without a hearing was
appropriate as there were no genuine issues of material fact in dispute.
Specifically, the AJ concluded that assuming, arguendo, complainant
established a prima facie case of reprisal discrimination, the agency
articulated legitimate, nondiscriminatory reasons for its action that
complainant failed to show were pretextual. 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.
On appeal, complainant reiterates his contention that he was subjected
to discrimination as alleged. Complainant also contends that the AJ
erred in denying his Motion to Amend. In addition, complaint argues
that the agency violated the Freedom of Information Act and Privacy Act
by denying him access to documents from 1996, which the agency claims
no longer exist.
ANALYSIS AND FINDINGS
As an initial matter, we note that the Commission has held that it does
not have jurisdiction over the processing of FOIA requests. Instead,
persons having a dispute regarding such requests should bring any
appeals about the processing of his or her FOIA requests under the
appropriate FOIA regulations. Gaines v. Department of the Navy, EEOC
Request No. 05970386 (June 13, 1997). Additionally, the Commission does
not have jurisdiction over Privacy Act violations. See Bucci v. Department
of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (April 12,
1989) (jurisdiction rests exclusively in the United States District
Courts for matters brought under the provisions of the Privacy Act).
Moving next to the merits of the instant complaint, as this is an appeal
from a FAD issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b),
the agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. To prevail in a disparate treatment claim such
as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Here, we find that the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the record reflects that
Maintenance Craft Career employees, such as complainant, are given
first priority for vacancies based upon their ranking on the Promotion
Eligibility Register (PER). (Report of Investigation, Exhibit 15).
The record shows that in order for an applicant to be placed on the
PER, he or she must take and pass an exam, receive a satisfactory or
passing rating from his or her immediate supervisor, and be interviewed
and receive a satisfactory or passing rating from the interview panel.
(R.O.I., Affidavit A, 6; B, 2; C, 3). The record further shows that
complainant failed the required testing in the areas of basic mechanics
and test equipment and, therefore, did not qualify to be listed on the
PER. (R.O.I., Affidavit E). Further, the record shows that unless an
applicant is listed on the PER he or she is not considered for promotion.
(R.O.I., Exhibit 15). We concur with the AJ's finding that complainant
failed to proffer any evidence from which a reasonable fact-finder could
conclude that the agency's actions were motivated by retaliatory animus
or that the agency's articulated reasons for its actions are a pretext
for reprisal discrimination.
Finally, we find no indication the AJ abused her discretion in denying
the motion to amend the complaint. According to 29 C.F.R. � 1614.106(d),
"[a]fter requesting a hearing, a complainant may file a motion with the
Administrative Judge to amend a complainant to include issues or claims
like or related to those raised in the complaint." Here, we find that
the AJ was correct in stating that the amendment "would require a new
and extensive investigation," and that complainant should contact an
EEO counselor if he wishes to raise the claims as stated in his Motion.
(AJ Decision, 2).
CONCLUSION
We find that viewing the record evidence in a light most favorable to
complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ's decision and the agency's final order is AFFIRMED.
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 9, 2009
Date
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0120072562
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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