01A13668
03-06-2003
Steve F. Merrill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Steve F. Merrill v. United States Postal Service
01A13668
March 6, 2003
.
Steve F. Merrill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A13668
Agency No. 4G-760-0279-98
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his 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 during the relevant time, complainant was employed
as a Full-Time City Carrier, PS-05, at the agency's Jordan Station in
Amarillo, Texas. Complainant sought EEO counseling and subsequently filed
a formal complaint on August 31, 1998, alleging that he was discriminated
against on the bases of sex (male) and reprisal for prior EEO activity
when on or about May 29, 1998, he was issued a notice of removal which
was subsequently reduced to a letter of warning on June 30, 1998.<1>
At the conclusion of the investigation, complainant was provided 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 concluded that no genuine issues
of material
fact or credibility were in dispute, and therefore, the issuance
of a decision without a hearing was appropriate. Specifically,
the AJ found that complainant failed to establish a prima facie case
of retaliation because he failed to identify any similarly situated
co-worker, not in his protected class, who was treated more favorably
under similar circumstances. The AJ additionally found no evidence of
a causal link between complainant's prior EEO activity and the instant
adverse treatment. As to sex discrimination, the AJ again found that
complainant failed to identify a similarly situated co-worker, not
in his protected class, who was treated more favorably under similar
circumstances, and therefore, he failed to establish a prima facie case
of sex discrimination. The AJ also found that complainant does not
deny committing the offense which the agency accused him of committing.
The AJ concluded that complainant was neither discriminated nor retaliated
against. The agency's final order implemented the AJ's decision.
Complainant raises no new contentions on appeal. The agency requests
that we affirm its final order. As an initial matter we note that,
as this is an appeal from a FAD issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a).
The Commission's regulations allow an AJ to issue a decision without a
hearing when he 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, 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 such a disposition.
Initially, the Commission concurs with the AJ's determination
that complainant failed to establish that there was a genuine issue
of material fact in dispute insofar as complainant concedes that he
engaged in outside work while on sick leave. Further, upon review of the
record, the Commission finds that complainant failed to proffer evidence
to establish a prima facie case of sex or reprisal discrimination.
Accordingly, we find that the AJ properly issued a decision without a
hearing and that the AJ's ultimate determination that complainant failed
to establish discrimination is supported by the evidence of record.
Therefore, we AFFIRM the agency's final order 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
March 6, 2003
__________________
Date
1 In the Notice of Removal complainant was charged with taking sick
leave �to engage in outside work,� in violation of Part 513.312 of the
Employee and Labor Relations Manual. Specifically, complainant while on
sick leave, was observed working at a food establishment which he owned,
on May 12, 1998. Complainant had requested sick leave on May 11, 1998,
for the remainder of that day, and for eight hours on May 12, 1998,
because he had allegedly broken his glasses, and was experiencing eye
strain and a headache.