Stephen Ruebusch, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.

Equal Employment Opportunity CommissionOct 4, 2000
05a00554 (E.E.O.C. Oct. 4, 2000)

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.