01A05159
05-08-2001
Steven Taylor, Sr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southwest Area) Agency.
Steven Taylor, Sr. v. United States Postal Service
01A05159
May 8, 2001
.
Steven Taylor, Sr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southwest Area)
Agency.
Appeal No. 01A05159
Agency No. 1G-754-0070-98
Hearing No. 310-99-5313X
DECISION
Complainant timely initiated an appeal from the agency's final Order
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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the bases of race (Black), sex (male),
and reprisal (prior EEO complaint) when on April 2, 19998, his request
for reconsideration for a position as a mail handler and distribution
clerk was denied, allegedly because of his prior criminal record.
For the following reasons, the Commission AFFIRMS the agency's final
Order.
The record reveals that complainant, a casual employee at the agency's
North Texas Processing and Distribution Center in Copell, Texas,
filed a formal EEO complaint with the agency on May 27, 1998, 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 either disparate treatment or reprisal. Specifically, the AJ
found that complainant failed to demonstrate that similarly situated
applicants not in his protected classes were treated differently under
similar circumstances when complainant was not selected for employment
by the agency. The AJ further found that there was no evidence that
the agency's selecting official (SO 1) knew of complainant's prior
EEO activity. The agency's final action implemented the AJ's decision.
From this decision, complainant appeals.
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.
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 correctly
found that there was no genuine issue of material fact in this case.
In his formal EEO complaint, complainant asserted that two other
individuals (CA 1: White, female and CA 2: White, male) with criminal
records had been accepted for employment by the agency. On December 14,
1999, the AJ issued a show cause order in order to provide the parties an
opportunity to submit any objections they might have to the issuance of
a summary decision. Complainant responded by repeating the assertions
initially made in his formal complaint concerning the alleged criminal
records of CA 1 and CA 2. Complainant, however did not provide any
evidence in support of his allegation. In addition, complainant did
not address the issue of reprisal. Based upon complainant's response,
the AJ requested additional information from the agency. The agency
responded that neither CA 1 nor CA 2 had criminal records.
We note that, in order to overcome a summary judgment motion, �a mere
recitation that there is a factual dispute is insufficient.� See
EEO-MD-110, 7-15. A party seeking to establish the existence of a genuine
issue of material fact must do more than merely repeat the same facts
initially raised in his formal complaint. See Patton v. United States
Postal Service, EEOC Request No. 05930055 (July 1, 1993); Complainant,
by not supporting his allegations concerning the criminal history of CA
1 and CA 2, failed to meet this test. In addition, as complainant has
presented no evidence that SO 1 was aware of complainant's prior EEO
activity, there is no issue of material fact. Summary judgment was
therefore appropriate in this case. See Jaskoviak v. United States
Postal Service, EEOC Appeal No. 01986620 (January 8, 2001).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. 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 Order.
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 8, 2001
__________________
Date