0120062461
09-07-2007
Rufus Pleasant, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rufus Pleasant,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200624611
Agency No. 4K-220-0031-03
Hearing No. 100-2005-00364X
DECISION
Complainant filed an appeal from the agency's final action dated January
18, 2006, finding no discrimination with regard to his complaint. In his
complaint, dated April 23, 2003, complainant, a Mail Carrier in the
agency's Main Post Office, Alexandria, Virginia, alleged discrimination:
(1) in reprisal for prior EEO activity when on May 3, 2002, he was
charged 10 hours of Leave Without Pay (LWOP); and (2) based on disability
(spine injury) and in reprisal for prior activity when from February 22,
2003 to December 24, 2003, he was charged with 102.79 hours of LWOP.
Upon completion of the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On December
27, 2005, 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 LWOP. Initially, with regard
to claim (2), the Commission notes that complainant on appeal concedes
that after his spinal injury took place on February 21, 2003, he had
exhausted all available annual and sick leave and therefore he was
correctly placed on LWOP status. Thus, complainant is not challenging
the finding of no discrimination in claim (2).
Turning to claim (1), complainant's supervisor stated that during the
relevant time period at issue, complainant was on light duty for his foot
injury of April 30, 2002, and he was charged 10 hours of LWOP because he
failed to return to work after being sent home to report back to work
with proper footwear. The supervisor indicated that complainant was
paid for the days he worked, but he was charged LWOP for the additional
hours because he had used all his annual and sick leave. The supervisor
noted that complainant was paid COP for his subsequent back injury,
described above. Complainant retired on disability on December 4, 2003.
On appeal, complainant contents that during the relevant time period
at issue another employee was allowed by the supervisor to work while
outfitted in the same footwear complainant was sent home for wearing.
After a review of the record, the Commission finds that the real issue
in the instant case is clearly not whether complainant was allegedly
sent home due to his failure to wear proper footwear; rather it is
whether he was discriminatorily charged 10 hours of LWOP. This was the
accepted and investigated issue to which complainant did not contest.
Furthermore, complainant failed to provide any evidence as to whether
the identified employee was in fact a similarly situated person.
Upon review, the Commission finds that complainant failed to rebut the
agency's legitimate, non-discriminatory reason for the alleged LWOP.
It is noted that the Commission does not address in this decision whether
complainant is a qualified individual with a disability. Furthermore,
complainant has not claimed that he was denied a reasonable accommodation
or 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
09/07/2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120062461
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036