01986775
07-27-2001
Matthew Mataele, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Matthew Mataele v. U.S. Postal Service
01986775
July 27, 2001
.
Matthew Mataele,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986775
Agency No. 1E-841-1025-96
Hearing No. 350-97-8232X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 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 (Asian/Pacific Islander), retaliation (prior
EEO activity) national origin (Tongan)<1> and disability (learning
disability) when he was not selected to be a 204(b) supervisor.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Mailhandler PS-4, at the agency's
Processing and Distribution Center in Salt Lake City Utah, filed a
formal EEO complaint with the agency on August 16,1996, 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). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of
race and national origin discrimination because the selectees for the
position of 204B supervisor, were not members of his protected classes.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely that the complainant
had disciplinary problems resulting in the termination of his employment
in the past and had some attendance problems related to his lunch hours.
As a result, he did not meet the standards for becoming a supervisor
which required that he have good attendance and an exemplary record.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that the
complainant did not dispute the agency's assessments of his behavioral
problems or that he had attendance problems.
On the issue of the complainant's disability, the AJ concluded that he
was not an individual with a disability because he failed to prove that
his learning disability substantially limited a major life activity.
Therefore, he was not covered by the provisions of the Rehabilitation Act.
The agency's final decision adopted the AJ's decision.
On appeal, the complainant contends that he was not given a chance to
rebut the agency's argument that he was a disciplinary problem and that,
in any event, his past disciplinary problem was resolved long ago.
He further claimed that the agency's contention that it could not promote
him to a 204B supervisor because he was a regular mail-handler and had to
be paid out of schedule was not credible because others who had the same
status but were all Caucasian, had been promoted. The complainant also
claimed that national origin discrimination was proven by a manager's
testimony that he was not promoted primarily because of a language
barrier.
Regarding his disability, the complainant claimed that his attendance
problems were caused by his learning disability which the agency failed
to accommodate. He further stated that the AJ erred in relying on his
wife's testimony that his disability did not substantially limit any major
life activity because she was not competent to give an opinion. Therefore,
the AJ's conclusion that he was not an individual with a disability was
an error of law.
ANALYSIS AND FINDINGS
As an initial matter, the agency claims that the complainant's appeal
was untimely filed because the complainant received the final decision
on August 13, 1998 and did not file his appeal until September 15, 1998.
Our review of the record indicates the appeal was postmarked September
11, 1998 and is therefore, timely filed.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
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). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision was based on substantial evidence in the record, and the
Commission finds no reason to disturb her findings. We further note
that complainant knew that the agency had asserted he was not selected
for a 204B supervisor position because of his past disciplinary problems
because it was clearly stated in the selecting official's statement.
Even with this knowledge, he failed to present evidence at the hearing to
support his contention that others who were promoted also had disciplinary
problems. Therefore, we reject the complainant's contention that he was
not given an opportunity to present that evidence and that it should be
considered for the first time on appeal.
On the issue of the complainant's disability, we will assume for the
purpose of this decision that the complainant was an individual with a
disability in order to determine whether he was treated less favorably
because of his condition. Based on the record before us, there was no
evidence presented that the complainant's rejection for a detail to 204B
supervisor was based on his disability. Therefore, we conclude that
the AJ's decision was correct and that there was no discrimination on
this basis. We observed that the complainant's assertion he was denied a
reasonable accommodation for his learning disability was raised for the
first time on appeal. The complainant cannot claim, however, that an
error was committed at the hearing below concerning an issue that was
never raised and on which no evidence was presented. Therefore, for
this reason, we decline to address the issue of reasonable accommodation.
We further affirm the AJ's finding that the complainant failed to
establish that any of the agency's actions were in retaliation for
complainant's prior EEO activity. The AJ found that the complainant
failed to refute the agency's reasons for not selecting him for a detail
to a 204B position and he, therefore, failed to demonstrate that there
was a nexus between his prior protected activity and agency's decision.
On this claim, we discern no basis to disturb the AJ's decision.
CONCLUSION
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 decision.
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
July 27, 2001
Date
1The administrative judge's recommended decision indicated that national
origin was a basis for the complaint although it was not originally
stated in the complaint or the EEO counselor's report.