Benjamin A. Pezzillo, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.

Equal Employment Opportunity CommissionMar 30, 2007
0120053341 (E.E.O.C. Mar. 30, 2007)

0120053341

03-30-2007

Benjamin A. Pezzillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.


Benjamin A. Pezzillo,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area)

Agency.

Appeal No. 01200533411

Agency No. 1F901000103

Hearing No. 340-A3-3707X

DECISION

Pursuant to 29 C.F.R. �1614.405, the Commission accepts complainant's

appeal from the agency's March 7, 2005 final order in the above-entitled

matter. In his complaint dated January 9, 2003, complainant alleged that

the agency discriminated against him on the bases of race (Caucasian)

and in reprisal for prior protected EEO activity under Title VII of the

Civil Rights Act of 1964 when:

1. he was assigned less desirable work and;

2. his work hours were reduced between the period July 2002 and December

2002.

Complainant satisfied all the procedural prerequisites for requesting a

hearing and the matter was referred to an EEOC Administrative Judge (AJ).

After holding a hearing, the AJ determined that the agency discriminated

against complainant on the basis of his prior protected EEO activity

when he was assigned less desirable work and when he was not given any

shifts. She ordered the agency to take remedial action in the form of

back pay from the time he was sent home on September 8, 2002 to December

31, 2002. He was reappointed as a casual employee after December 31,

2002. Because complainant was employed as a casual employee, the AJ

concluded there were no benefits lost as result of the discrimination.

Transcript at 188. The AJ found that there was no evidence to support

complainant's claim of race discrimination. Id. The agency's final

action fully implemented the AJ's decision and order for relief.

On appeal, complainant contends that the AJ's decision also found that the

agency's actions constituted race discrimination and that the agency's

final action did not incorporate that finding. Complainant seeks to

correct the agency's final order to accurately reflect the AJ's findings.

The agency did not submit any comments in response to the appeal.

The Commission has reviewed the record and concludes that the agency's

final order correctly reflects the AJ's finding of discrimination based

on retaliation for prior protected EEO activity only. The portions of

the record to which complainant refers, reflect the AJ's conclusion that

there was a prima facie showing of race discrimination, but not a finding

by a preponderance of the evidence that race discrimination occurred.

See Transcript at 188.

To the extent that complainant challenges the AJ's finding of no race

discrimination, we will uphold all post-hearing factual findings by

an AJ if supported by substantial evidence in the record. 29 C.F.R. �

1614.405(a). Substantial evidence is defined as "such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951) (citation omitted). The issue of whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). After a review of the record, the Commission

concludes that the AJ's finding of no race discrimination, was supported

by the record as there was no evidence offered from which it could be

inferred that complainant's race motivated the agency to deny him shifts

or to give him less desirable shifts. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981). Even assuming that complainant established an

inference of discrimination, the AJ was correct that complainant failed to

satisfy his ultimate burden of demonstrating that the agency's decision

was based on his race. St. Mary's Honor Center v. Hicks, 509 U.S. 502,

519 (1993).

CONCLUSION

After a review of the record in its entirety, including consideration

of complainant's statement submitted on appeal, it is the decision of

the Equal Employment Opportunity Commission to affirm the final agency

action implementing the Administrative Judge's finding of discrimination

based on retaliation for protected EEO activity.

ORDER (D0900)

To the extent it has not already done so, the agency is ordered to take

the following remedial action:

1. The agency shall determine the appropriate amount of back pay (with

interest, if applicable) pursuant to 29 C.F.R. � 1614.501, no later than

sixty (60) calendar days after the date this decision becomes final.

The complainant shall cooperate in the agency's efforts to compute

the amount of back pay and benefits due, and shall provide all relevant

information requested by the agency. If there is a dispute regarding the

exact amount of back pay and/or benefits, the agency shall issue a check

to the complainant for the undisputed amount within sixty (60) calendar

days of the date the agency determines the amount it believes to be due.

The complainant may petition for enforcement or clarification of the

amount in dispute. The petition for clarification or enforcement must

be filed with the Compliance Officer, at the address referenced in the

statement entitled "Implementation of the Commission's Decision."

2. The agency will expunge its records of any references to actions

deemed to be discriminatory during the time period September 8, and

December 31, 2002;

3. The agency will require the supervisor(s) responsible for the

discriminatory conduct to take 8 hours of training in the provisions

of Title VII, in particular, the prohibition against retaliation for

protected EEO activity. The Commission does not consider training to

be a disciplinary action.

4. The agency will consider taking disciplinary action against

the subordinate employee identified as being responsible for the

discriminatory harassment perpetrated against complainant. The agency

shall report its decision. If the agency decides to take disciplinary

action, it shall identify the action taken. If the agency decides not

to take disciplinary action, it shall set forth the reason(s) for its

decision not to impose discipline.

5. The agency will post notice as set forth below.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay due complainant, including evidence

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Los Angeles Processing and

Distribution Center copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The complainant also has the right

to file a civil action to enforce compliance with the Commission's order

prior to or following an administrative petition for enforcement. See 29

C.F.R. ��1614.407, 1614.408, and 29 C.F.R. �1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.407 and 1614.408. A civil action

for enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.409.

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

____3/30/07_______________

Date

1 Due to a new data system, your case has been re-designated with the

above referenced appeal number.

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0120053341

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120053341