0120063396
10-24-2007
Jose Beitia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose Beitia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200633961
Agency No. 4A-007-0019-04
Hearing No. 150-2005-00643X
DECISION
Complainant filed an appeal from the agency's final action dated April
10, 2006, finding no discrimination with regard to his complaint.
In his complaint, filed on February 18, 2005, complainant, a Supervisor
of Distribution Operations at the agency's San Juan Processing and
Distribution Center, alleged discrimination based on color (black),
national origin (Puerto Rican), age (DOB: 1/3/1941), and disability (back,
ankle and left arm) when by memo dated October 12, 2004, he was advised
of his nonselection for the position of Supervisor, Customer Services,
EAS 17, NYMA, Vacancy Announcement #2004-378.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On April
4, 2006, the AJ issued a decision without holding a hearing, finding no
discrimination. The agency's final action implemented the AJ's decision.
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. 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.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. In this case, the AJ
determined that, assuming arguendo that complainant had established a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for the alleged nonselection. Specifically,
the agency stated that on May 28, 2004, Individual A, a Supervisor
of Customer Service at the Guayama Main Post Office, wrote a letter
to a Manager of Post Office Operation in the Caribbean, requesting
a non-competitive lateral transfer to the position at issue recently
left vacant by another individual as a Supervisor of Customer Services
at the Caguas Post Office. Individual A also sent his request to the
Caguas Postmaster, who subsequently approved the request in June 2004,
for a lateral transfer.
The agency mistakenly posted a vacancy announcement for the position
at issue on July 8, 2004, to which complainant applied. In August
2004, when the Caguas Postmaster realized this mistake, he instructed
his Officer in Charge during his absence, to call Human Resources and
to cancel the announcement. However, the Personnel Manager in Human
Resources indicated that although she received the paperwork approving
the lateral transfer, it had been lost or misplaced, and it was too late
to cancel the vacancy announcement.
The agency stated that the Officer in Charge did not select Individual A
over complainant, but rather on the Caguas Postmaster's behalf, she filled
out "new" paperwork in October 2004, because the original paperwork had
been misplaced or lost to effectuate Individual A's reassignment/transfer.
By its letter dated October 12, 2004, the agency informed complainant
that the position at issue was awarded to another applicant who requested
a lateral reassignment. Also, the agency, undisputed by complainant,
pointed out that complainant had not worked in Customer Services at all
since July 2001.
Upon review, the Commission finds that complainant failed to rebut
the agency's legitimate, nondiscriminatory reasons for the alleged
nonselection. The Commission does not address in this decision whether
complainant is a qualified individual with a disability. It is noted
that complainant clearly has not claimed in his complaint that he was
denied a reasonable accommodation; nor has he claimed or shown that he
was required to work beyond his medical restrictions.
Accordingly, the agency's final action is 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
10/24/07
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120063396
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036