Roy Gray, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 9, 2009
0120072562 (E.E.O.C. Jun. 9, 2009)

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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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