01A10938
05-03-2001
John L. McDonald, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John L. McDonald v. United States Postal Service
01A10938
May 3, 2001
.
John L. McDonald,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10938
Agency No. 4-C-164-0060-99
Hearing No. 170-A0-8285X
DECISION
Complainant timely initiated an appeal from the agency's final action
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
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the bases of sex (male), age (DOB: June 27,
1941), disability (Chronic Pulmonary Disorder and stress), and reprisal
(prior EEO activity) when:
(1) as a result of an arbitration hearing, complainant was issued a
suspension that had been held in abeyance, however, he received notice
that the suspension would be served from July 31, 1999 through August
7, 1999, even though complainant was in a continuation of pay status
as a result of an on-the-job injury; and
management attempted to falsify records since he had already technically
served the suspension when he received an August 11, 1999 memo stating
the suspension would no longer be served.
The record reveals that complainant is a City Carrier at the agency's
facility in Greenville, Pennsylvania. The agency issued a suspension
to complainant on April 5, 1999, which was held in abeyance pending the
outcome of an arbitration. Complainant's grievance on the suspension was
denied and consequently, he was to serve a seven-day suspension from July
31, 1999 through August 7, 1999. From July 1, 1999 through August 15,
1999, complainant was in COP status due to an on-the-job injury and,
therefore, exempted from serving the suspension. On August 11, 1999,
complainant received correspondence from his Postmaster informing him
that he would not be serving the suspension because of his COP status.
Complainant believed that this action was a falsification of agency
records because the correspondence was dated July 29, 1999, but received
after the suspension period, giving the appearance that the notification
was provided before he actually served the suspension. Believing that
he was the victim of discrimination, complainant filed a formal EEO
complaint with the agency on September 2, 1999, alleging that the agency
had discriminated against him as referenced above. 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 concluded that complainant failed to establish a prima facie case
of discrimination based on age, sex, disability, and reprisal. The
AJ further determined that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that management
indicated that complainant was in COP status and therefore could not
be placed in a �loss of pay� status such as a suspension. The agency
explained that complainant's suspension was considered a working
suspension and his COP was not interrupted and he did not lose pay.
Finally, the AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask unlawful
discrimination and/or retaliation. In reaching this conclusion, the AJ
found that complainant did not show that the agency falsified records
regarding his paper suspension.
The agency's final action implemented the AJ's decision. On appeal,
complainant contends that the letter he received on August 11, 1999, was
an error and the agency was attempting to cover up their blunder of making
him serve a suspension while in COP status. Complainant also argues
that the suspension was based on lies and was another attempt by the
agency to remove him from service. In response, the agency restates the
position it took in its FAD, and requests that we affirm its final action.
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 does not
sit as a fact finder. Id. 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. A disputed 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, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, we find that the AJ properly
determined that summary judgment was appropriate in this case.
In particular, the Commission finds that there was no genuine issue
of material fact in this case. Complainant argues on appeal that,
at a hearing, the truth will come forward in the case of his suspension
which he claims was issued as another attempt to remove him from service.
The Commission finds that complainant fails to provide any support for
his statement. Furthermore, the Commission notes that the issuance of
the suspension is not at issue in the case at hand. The instant complaint
alleges that the agency discriminated against complainant when, on August
11, 1999, he received a memorandum that his suspension would be served
from July 31, 1999 through August 7, 1999 and that memo was an attempt
by management to falsify agency records. Complainant's contention on
appeal refers to the suspension itself which is not the issue before
the Commission. Therefore, we concur in the AJ's determination and find
that summary judgment was appropriate in this case.
Based on our careful de novo review of the entire record before us,
the Commission finds that the AJ's findings and conclusions properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that any of the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by discriminatory animus toward
complainant's sex, disability, and/or age. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 3, 2001
__________________
Date