01a43956
07-13-2005
Samuel Rivers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Samuel Rivers v. United States Postal Service
01A43956
July 13, 2005
.
Samuel Rivers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43956
Agency No. 4A-070-0077-02
Hearing No. 170-2004-00023X
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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Letter Carrier at the agency's
South Orange, New Jersey facility, filed a formal EEO complaint on May
23, 2002, alleging that the agency discriminated against him on the bases
of race (African-American) and in reprisal for prior EEO activity when:
(1) on or about December 22, 2001, he was threatened by a co-worker;
he was issued a Letter of Warning (LOW) dated March 26, 2002; and
on or about April 10, 2002, he was not permitted to work overtime.
On December 4, 2002, the agency issued a Partial Acceptance/Dismissal.
The agency dismissed claim (2) as moot pursuant 29 C.F.R. �
1614.107(a)(5). The agency noted that because the LOW was rescinded
by notice dated April 30, 2002, the alleged violation no longer exists
and there was no expectation that will recur. The agency accepted for
investigation claims (1) and (3).
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On March 5, 2004, the agency filed a Motion for a Decision
without a Hearing. Complainant had fifteen days to respond to the motion.
No response was filed within the requisite time period. On April 1, 2004,
after the 15 day time limit had elapsed, complainant's attorney filed
a motion seeking additional time to respond to the Agency's motion.<1>
On April 6, 2004, the AJ denied complainant's motion. On April 14, 2004,
the AJ issued a decision without a hearing, finding no discrimination.
The AJ did not do any independent legal analysis. Rather, the AJ adopted
the agency's facts and applicable law as set forth in its �Motion for a
Decision without a Hearing.� The AJ points out from the agency's Motion
that complainant failed to establish a prima facie case of discrimination.
In its Motion the agency contended that complainant failed to establish
a prima facie case of disparate treatment discrimination. Specifically,
the agency argued that complainant has failed to proffer the name of
any similarly situated employee who was treated more favorably under the
same circumstances with respect to the alleged failure of the agency to
address an alleged threat by a co-worker. The agency also argued that the
agency did take action in response to complainant's claim; namely: service
talk and two separate investigations. The agency stated that management
interviewed nine employees and conducted a comprehensive investigation.
The agency also stated that the investigation indicated that there was no
corroborating evidence that a threat had been made toward complainant.
Regarding claim (2), the agency noted that complainant has pointed
to a fellow employee (C1) as being similarly situated and treated more
favorably. However, the agency alleged that complainant and C1 were both
offered overtime approximately the same amount of times during the three
months proceeding the date in question. The agency further alleged that
both were offered overtime on April 10, 2002, and complainant admitted
he was offered overtime. The agency stated that complainant was offered
overtime on seventeen occasions and declined on eight occasions; and C1
was offered overtime on nineteen occasions during the same time period
and declined on fourteen occasions.
Finally, the agency argued that complainant failed to establish a
prima facie case of retaliation. Specifically, the agency stated that
the officials involved in the instant complaint were not even aware
of complainant's prior activity or had any involvement in his prior
complaints. The agency alleged that complainant admitted that none of the
alleged discriminating officials involved in this matter were involved
in his prior complaints. The agency further argued that even if the
officials in question were aware of complainant's prior activity there was
no nexus between his prior complaint and the alleged discriminatory acts.
Complainant's principal contention in support of his appeal is that the AJ
improperly denied his request for an additional time to file response to
the �Agency's Motion for Decision Without a Hearing,� dated April 1, 2004.
Specifically, complainant contends that the AJ abused her discretion
in denying complainant an extension, and that the AJ denied him the
opportunity to raise significant issues of material fact in dispute,
and to fully respond to the agency's arguments. Complainant requested
that the Commission remand the entire matter to the AJ with direction
that complainant be given the opportunity to submit a response to the
agency's Motion. On appeal, complainant also challenged the agency's
dismissal of claim (2).
Dismissal of Claim (2)
The regulation set forth at 29 C.F.R. � 107 (a)(5) provides for the
dismissal of a complaint when the issues raised therein is moot.
To determine whether the issues raised in complainant's complaint
are in fact moot, it must be ascertained (1) if it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur, and (2) if the interim relief or events have
completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis 440 U.S. 625 (1979);
Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
The Commission finds that the Letter of Warning issued to complainant
on March 26, 2002, was rescinded by notice dated April 30, 2002.
Complainant did not dispute these findings. On appeal, complainant
also did not allege that he has suffered a harm or loss with respect
to a term, condition, or employment for which there is a remedy nor
request compensatory damages for the LOW. Therefore, we find that the
effects of the LOW have been eradicated and there is no indication that
the incident is likely to recur. Accordingly, the agency's decision
dismissing complainant's claim (2) as moot is affirmed.
Decision without a Hearing (claims 1 and 3)
The Commission's review of a decision without a hearing is de novo,
meaning that it is done without regard to the legal or factual conclusions
of the previous decision maker. EEOC Management Directive 110, Chapter 9
(Section VI) (Revised 1999). 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 only appropriate where a court
determines that, given the substantive legal and evidentiary standards
that apply to the case, there exist 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, the issuance of a decision without a hearing
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
upon a determination that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003).
As a preliminary matter, the Commission determines after thorough review
of the record that the AJ properly acted within her discretion in denying
a request for extension by complainant's attorney dated April, 2004.
Specifically, we find that complainant's attorney requested an extension
to respond the Agency's Motion for a Decision Without a Hearing only
after the time to respond had expired. The Commission notes that an AJ
has a broad discretion in extending the time to respond and in whether
to consider a response that was not timely filed. See EEOC Handbook for
Administrative Judges, 5-2 (July 1, 2002); and EEOC Management Directive
110 (EEO MD-110), Chapter 7, Section III, (as revised, November 9, 1999).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); A complainant must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco Construction
Corp v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate a
legitimate, nondiscriminatory reason for its action(s). Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that the
agency's reason was pretextual, that is, it was not the true reason or
the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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. Specifically, we find, assuming arguendo that complainant
established a prima facie case of discrimination based on his race,
and reprisal, that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The record reveals that on December 22, 2001,
complainant complained to management that a co-worker had threatened
him during an argument. The record further reveals that management
immediately interviewed all of the employees in the general vicinity
of the argument, finding no evidence that complainant was threatened.
The evidence also shows that management conducted a service talk on
proper conduct on the workfloor as a preventive measure. Moreover, the
record reveals that complainant wrote to a number of high ranking Postal
Officials regarding the incident. As a result, the Northern New Jersey
District Employee Workplace Intervention Analyst came to complainant's
facility and interviewed nine employees and conducted a comprehensive
investigation. The report indicates that there was no evidence that a
threat had been made. Further, the record also reveals by complainant's
own admission that he was offered overtime on April 10, 2002. The record
shows that in the three month period preceding April 10, 2002, complainant
was offered overtime on seventeen (17) occasions and declined on eight
(8) occasions. 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 classes. We conclude that complainant has not
�set forth specific facts showing that there is a genuine issue for a
trial.� Fed. R. Civ. P. 56(e). Therefore, for the foregoing reasons,
we affirm the agency's final order adopting the AJ's finding of no
discrimination.
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
July 13, 2005
__________________
Date
1Complainant's attorney requested extra time
because her son-in-law had been deployed to Iraq.