0120092925
10-29-2009
Rudy W. Rivers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rudy W. Rivers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092925
Agency No. 4F-945-0202-08
Hearing No. 550-2009-00132X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 28, 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., 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.
During the period at issue, complainant was employed as a City Carrier
at the agency's Pleasanton Main Office in Pleasanton, California.
On June 26, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On September 15, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of race (African-American), sex (male), disability (plantar
fasciatus, foot problems, heart stents, spinal stenosis, trigger finger,
back/shoulder condition, hearing problems and glaucoma), and age (over
40) when:
(1) on or around February 12, 2008, his supervisor whistled at him to
get his attention;
(2) on June 26, 2008, he was told to leave the building after an incident
with his supervisor;
(3) on August 1, 2008, he was issued a Notice of Seven Day (No Time Off)
Suspension for the June 26, 2008 incident;
(4) on unspecified dates, his clock rings were monitored; and
(5) on an unspecified date, he was made aware that his supervisor
continually brought up his name in supervisor meetings.
On October 3, 2008, the agency issued a partial dismissal. Therein,
the agency accepted for investigation (2) and (3). However, the agency
dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds
of untimely EEO Counselor, and claims (4) - (5) for failure to state a
claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
Following the investigation concerning claims (2) and (3), complainant
requested a hearing before an EEOC Administrative Judge (AJ). On May 20,
2009, the AJ issued a decision by summary judgment in favor of the agency.
On May 28, 2009, the agency fully implemented the AJ's decision in its
final action.
The AJ found that complainant did not show by a preponderance of the
evidence that he was discriminated against on the bases of race, sex,
disability and age.1 The AJ noted in regard to claim (2), the record
reflects that on June 26, 2008, the Officer-in Charge (OIC) called the
Pleasanton Post Office to speak with the Supervisor Customer Services
(SCS) and complainant answered the telephone call. The AJ noted that the
OIC asked complainant to call SCS to the telephone but that complainant
"stated he did not have time. I then called back and he still did not
call her to the phone. When I finally spoke to [SCS] I asked her to find
out why [Complainant] did not call her to the phone. I was told that when
[SCS} attempted to discuss this with [complainant] he became hostile."
The AJ noted that SCS stated that she questioned complainant concerning
OIC's phone call and why he did not call for her to answer the telephone
call. SCS stated that complainant "immediately became agitated and began
yelling that he did not have time to run around and look for supervisors.
I asked him to 'calm down' and asked him why he didn't come and get me
when the OIC instructed him to do so. He immediately became defensive
and hostile and kept telling me to leave him alone, that he was busy.
I repeated to him to 'calm down' but he became even more agitated,
at this point he became even more agitated and screamed at me 'Get Out
Get Out Get Out' he leaned towards me in a threatening motion as if he
were going to get out of his chair and hit me." SCS further stated "at
this time I felt threatened and scared, so I instructed [Complainant]
to clock off and leave the building." SCS stated that complainant was
paid four hours of administrative leave for June 26, 2008.
Regarding claim (3), the AJ noted that on July 21, 2008, SCS conducted a
Just Case Interview wherein she gave complainant an opportunity to explain
his actions of June 26, 2008. The AJ noted that the record reflects
that complainant denied any wrongdoing and instead, he alleged that
SCS was a liar and that he was the one who was badgered and harassed.
The AJ noted that SCS was the deciding official to issue complainant
the Notice of Seven Day (No Time Off) Suspension for unacceptable
conduct/behavior and failure to follow instructions. Specifically, SCS
stated that she made the determination to issue complainant the suspension
"because of the severity of the situation and his hostile behavior
toward a supervisor." SCS stated that complainant was in violation
of the Employee and Labor Relations Manual Sections 665.15 "Obedience
to Orders," 665.16 "Behavior and Personal Habits," and 665.24 "Violent
and/or Threatening Behavior;" and the agency's Zero Tolerance Policy.
Furthermore, SCS stated that complainant's race, sex, disability and age
were not factors in her determination to issue him a Notice of Seven Day
(No Time Off) Suspension.
OIC stated that she was the concurring official concerning complainant's
Notice of Seven Day (No Time Off) Suspension. OIC further stated
"hostile behavior is not tolerated in the work place. I also had a prior
conversation with [complainant] regarding his behavior in the workplace."
Moreover, OIC stated that she did not discriminate against complainant
based on his race, sex, disability and age.
On appeal, complainant argues that SCS "did receive the placed call, as
I paged another supervisor to contact her. The only problem was that I
did not personally get up from my desk and fetch [SC] to the telephone.
It was my word against [SCS], as to what transpired in my office."
Complainant further argues that management, including SCS, want him "out
because of several reasons. I am a limited duty employee. The Postal
Service like many organizations is strapped for cash."
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 concerning claims (2) -
(3), 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.2
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
October 29, 2009
__________________
Date
1 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.
2 We note that complainant, on appeal, does not challenge an agency
October 3, 2008 partial dismissal regarding claims (1) and (4) - (5).
Therefore, we have not addressed these issues in our decision.
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0120092925
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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