01a50009
03-15-2005
Santiago Burgos, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Santiago Burgos v. United States Postal Service
01A50009
March 15, 2005
.
Santiago Burgos,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A50009
Agency No. 1-H-328-0006-03
Hearing No. 150-2003-9674X
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 Building Equipment Mechanic at
the agency's Orlando, Florida, Post Office facility, filed a formal EEO
complaint on January 15, 2003, alleging that the agency discriminated
against him on the basis of reprisal for prior EEO activity when
he was sent for a fitness for duty (FFD) examination on October 19,
2002, without an explanation. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ found that the agency had given complainant an explanation for
sending him to a FFD. Specifically, the AJ found that a Maintenance
Manager noted in the written request for complainant's FFD that
complainant was having problems completing his duties in a timely
manner having been away from his air-conditioned work station for over
50 minutes. He stated that complainant told him that he was resting
because the heat was getting to him. The AJ noted that complainant
was sent to the FFD to determine if he could perform the duties of his
position without being a hazard to himself or to others. The results
of the FFD were that complainant could not perform the duties without
hazard to himself or others. The AJ concluded that the agency provided
a legitimate, nondiscriminatory reason for making complainant take
the FFD and that the agency's action was not motivated by retaliation.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ was biased against him.
Specifically, complainant stated that the agency was not prepared on the
day of the pre-trial hearing and was allowed to have additional time
to prepare its case. Further, at the pre-trial hearing, he asserted
that the AJ questioned his health, cut him and his representative off
in mid-sentence and addressed only the evidence that was submitted by
the agency. Complainant requests that the AJ recuse herself from his
complaint. The agency makes no contentions.
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 in dispute. 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, 322-323
(1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st
Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of a case. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude entry
of summary judgment. Factual disputes that are irrelevant or unnecessary
will not be counted." Anderson, 477 U.S. at 248. If a case can only be
resolved by weighing conflicting evidence, the issuance of a decision is
not appropriate. 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
The record reveals that the Manager of the Maintenance Operations wrote
a memorandum to complainant's supervisor which stated that, on July
26, 2002, the Genie boom that complainant was supposed to be using to
install electrical outlets was sitting unattended. He stated that he saw
complainant's co-worker and then the complainant exit from the equipment
room. He stated that he asked the co-worker how long complainant had
been in the equipment room and he said that he was not sure but that
he had to remove a short length of conduit which was leaning against
the hallway door which may have been to alert anyone sleeping in the
equipment room of someone entering.
Complainant wrote a letter to the Department Manager stating that his
supervisor accused him of sleeping in the equipment room because of
his co-worker's lies. Complainant stated that he was sitting in the
equipment room because he was trying to catch his breath from the extreme
heat they had been experiencing and later noted that he was more than
55 and � years old.
Thereafter on August 13, 2002, the Manager, Maintenance Operations
requested that complainant take a FFD medical examination. The record
reveals that the FFD was approved by the Plant Manager.
The record reveals that complainant was examined by a physician for
his FFD examination. The report found that complainant was unfit for
duty unless he met three conditions. Complainant would need to provide
proof that he was not at risk of a heart attack. If complainant was at
risk of a heart attack, he needed clearance that he could handle the
stress of his duties. Finally, he needed to provide proof that he was
receiving psychiatric counseling. The record reveals that complainant
was cleared to return to work after two months. The supervisor stated
that he had not sent other employees to FFD because of health problems
with the heat because there were no other employees who had complained
about their health because of the heat.
With respect to complainant's claim of retaliation, complainant can
establish a prima facie case of reprisal discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with the burdens set forth in McDonnell Douglas, Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that:
(1) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The agency conceded to the investigator that complainant had filed EEO
complaints against his current supervisor. Assuming, arguendo, that
complainant has established a prima facie case of reprisal, we find that
the agency articulated a legitimate, nondiscriminatory reason for sending
complainant for a FFD. Specifically, the agency stated that complainant
had stated that he could not perform his duties since he needed to
rest because of the heat. Further, the agency stated that complainant
attributed his age to his inability to work. Complainant failed to
rebut the agency's explanation. Further, there is no evidence in the
record to support the conclusion that the legitimate reason proffered
by the agency was a pretext for reprisal.
With respect to complainant's contention that the AJ was biased toward
the agency, it does not, of necessity, follow that the AJ was biased
against complainant because the agency was allowed more time to prepare
their case, the AJ questioned the complainant regarding his health, cut
him and his representative off in mid-sentence, and addressed only the
evidence that was submitted by the agency. In fact, the investigative
report reveals that complainant was provided the chance to provide
evidence but declined to provide an affidavit. Complainant has made
no showing that the AJ would not consider his evidence. Neither the
evidence of record nor complainant's arguments produce a substantial
showing of personal bias. See Roberts v. Morton, 549 F.2d 158, 164
(10th Cir. 1977) (substantial showing of personal bias required to
obtain ruling that hearing was unfair). We are unpersuaded that the
AJ's conduct demonstrated bias against complainant.
Consequently, after a careful review of the record, the Commission finds
that the issuance of a decision without a hearing was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to
be most favorable to complainant, we find that complainant failed to
present evidence that any of the agency's actions were motivated by
reprisal for his prior protected activity. The agency's final order is
hereby AFFIRMED.
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:
March 15, 2005
______________________________ _________________
Carlton M. Hadden, Director Date
Office of Federal Operations