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