05a00554
10-04-2000
Stephen Ruebusch, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.
Stephen Ruebusch v. United States Postal Service
05A00554
October 4, 2000
.
Stephen Ruebusch,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny/Mid-Atlantic Region)
Agency.
Request No. 05A00554
Appeal No. 01991708
Agency Nos. 1C-451-0010-97; 1C-451-0067-97
Hearing Nos. 220-98-5228X; 220-98-5229X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Stephen
Ruebusch v. United States Postal Service, EEOC Appeal No. 01991708
(March 7, 2000).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant contends that by issuing a decision without a hearing,
the Administrative Judge (AJ) denied him the opportunity to present
evidence which could have established his claim of discrimination.
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgement is proper when "material facts are not in genuine dispute." 29
C.F.R. � 1614.109(g). Only a dispute over facts that are truly material
to the outcome of the case should preclude summary judgement. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes over
facts that might affect the outcome of the suit under the governing law,
and not irrelevant or unnecessary disputes, will preclude the entry of
summary judgement). For example, when a complainant is unable to set
forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element
of the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986); EEOC MD-110, at 7-15 (November 9, 1999).
In order to avoid summary judgment, the non-moving party, complainant
herein, must produce admissible factual evidence sufficient to demonstrate
the existence of a genuine issue of material fact requiring resolution
by the fact-finder. Celotex Corp., supra. The party opposing a properly
made motion for summary judgment may not simply rest upon the allegations
contained in his or her pleading, but must set forth specific facts
showing that there is a genuine issue still in dispute. In response to
a motion for summary judgment, the fact-finder's function is not to
weigh the evidence and render a determination as to the truth of the
matter, but only to determine whether there exists a genuine factual
dispute. Id. at 248-49.
After a careful review of the record, we find that the AJ properly
determined that there was no genuine issue of material fact in this case.
29 C.F.R. �1614.109(e)(3). Specifically, we find that complainant failed
to set forth sufficient facts showing that there was a genuine issue still
in dispute. Complainant argues that the comparison employees who were
given discussions for leaving their duty stations had prior records of
discipline, but provides no evidence to support his contention in this
regard.<2> As noted by the AJ, the record shows that the comparison
employees were given discussions while complainant received a Letter of
Warning due to past discipline, pursuant to the agency's progressive
discipline system. Similarly, complainant merely asserts that he was
given authorization to be away from his duty station by his group leader,
but provides no evidence to support this view. Further, the group leader
provided a statement that he had not authorized complainant to leave the
unit at any time. The AJ's decision indicates that the AJ considered
all of the evidence of record, including complainant's objection and
supporting exhibits, and concluded that no genuine issue of material
fact was presented. Our review of the record confirms that complainant
failed to show a dispute concerning a material fact sufficient to sustain
his objection to summary judgment. Therefore, we concur in the AJ's
determination and find that summary judgment was appropriate in this
case.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01991708 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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 ORDEPARTMENT
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.
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
October 4, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The evidence submitted by complainant with his request for
reconsideration fails to establish that the comparison employees had
�multiple previous infractions� as he claims, but rather that a comparison
employee was on sick leave for October 20-21, 1996.