01a54660
09-13-2006
Michael D. Marion, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael D. Marion v. United States Postal Service
01A54660
9-13-06
.
Michael D. Marion,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54660
Agency No. 4G-780-0145-04
Hearing No. 360-2005-00062x
DECISION
On June 22, 2005, Michael D. Marion (complainant) filed an appeal from
the June 5, 2005, final decision of the United States Postal Service
(agency) concerning a complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
Complainant was a part-time flexible unassigned clerk. He filed a formal
complaint on May 21, 2004, claiming discrimination based on race (black)
and sex when the agency changed his work assignment in February 2004,
resulting in fewer hours of work and a change in his weekly schedule
and his days off.<1> Following an investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ conducted
a hearing by telephone on April 21, 2005, and issued a bench decision,
made final on May 11, 2005, finding no discrimination. The AJ found
that complainant did not demonstrate that his race or sex was a factor
in the agency's action changing his duties and schedule.
Telephone Hearing
Initially, we note that the hearing in this case was conducted by
telephone without the objection of the parties. On May 17, 2006,
the Commission announced its policy regarding the conduct of hearings
and the taking of telephonic testimony in future cases by setting forth
standards for its Administrative Judges regarding the taking of testimony
by telephone. Louthen v. USPS, EEOC Appeal No. 01A44521 (May 17, 2006).
The Commission reasoned that, given the special weight accorded an
AJ's credibility findings based on his/her in-person observation of
witnesses, except for limited circumstances, the conduct of an entire
hearing by telephone is not appropriate and should not occur. Id.
The Commission held, however, that in exigent circumstances, i.e., when
in-person testimony is simply not practical, such as a witness deployed
on military reserve duty away from his/her duty station, testimony by
telephone may be appropriate. Id. Also, where both parties voluntarily
agree and request a telephonic hearing by the AJ, the AJ may consent but
must obtain documented proof of their voluntary request. Id.; see also
Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440 (May 17,
2006); Rand v. Department of the Treasury, EEOC Appeal No. 01A52116
(May 17, 2006).
As to cases that pre-date Louthen, such as the matter before us, the
Commission will assess the propriety of a telephone hearing considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances, whether
a party objected to the taking of telephonic testimony,<2> whether the
credibility of any witnesses testifying telephonically was at issue,
and the importance of the testimony given by telephone. Thus, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless or not.
Sotomayor v. Department of the Army, supra. In this matter, while it is
unclear whether exigent circumstances existed, there was no objection from
either party on the record, nor were there issues of witness credibility
that might have been impacted by the taking of testimony by telephone.
Under these circumstances, even if it is assumed that the AJ abused
his discretion in this case by taking testimony telephonically, the
Commission finds that the AJ's action constituted harmless error.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Disparate Treatment Claims
As described by the AJ, claims such as complainant's are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). First, complainant must establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas Corp. v Green, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, if
complainant is successful, the burden of production reverts to the
agency to offer its rebuttal to the inference of discrimination raised
by complainant by articulating legitimate, nondiscriminatory reasons
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Finally, once the agency has articulated its
reasons, the burden returns to complainant, who bears the ultimate burden
to persuade the fact finder by a preponderance of the evidence that the
reasons offered by the agency were not the true reasons for its actions
but rather were a pretext for discrimination.<3> St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993).
For purposes of analysis of complainant's claim, we assume, arguendo,
that complainant established a prima facie case. Next, the agency
articulated its reasons for its actions. Specifically, the agency, through
the Postmaster (PM) at complainant's facility, explained that some of the
duties performed by complainant allowed access to confidential employee
files and that it was inappropriate for complainant to have such access
and perform those duties; in particular, the PM noted that completing work
hours and timekeeping duties, volume reports, and attendance records
were more properly done by management-level staff. As of February
2004, these duties were removed from complainant's work assignment,
which led to a reduction in hours and changes in his schedule. We find
that the agency met its burden of production and articulated legitimate,
nondiscriminatory reasons for changing complainant's duties.
The ultimate burden of persuasion now returns to complainant to
demonstrate pretext. In response, complainant argued that his
rehabilitation job was understood to be a permanent assignment and that
the duties removed from his work assignment were performed by bargaining
unit employees at other facilities; however, he presented no probative
evidence in support of his arguments. We find that agency management,
through the PM, acted within its authority to assign work duties;<4> that
there are no grounds, other than complainant's testimony, to hold that
the October 1999, job assignment had permanence; or that complainant's
race or sex had a bearing on the PM's action.
For the above reasons, and after a review of the record in its entirety,
including consideration of all statements submitted on appeal, it is the
decision of the Commission to affirm the agency's final decision, because
the AJ's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
CONCLUSION
Accordingly, the agency's decision was proper and 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
____9-13-06______________
Date
1Since October 1999, until this action, complainant held a 'rehabilitation
position,' a job within his medical restrictions, working the day shift,
Monday through Friday. The duties performed by complainant included
answering telephones, tracking attendance and timekeeping for clerks and
carriers, preparing volume reports, clearing carriers of accountable mail,
preparing for the evening dispatch of mail, and others.
2Merely because a party objected to a hearing or testimony by telephone
is not necessarily dispositive. See Louthen v. United States Postal
Service, supra.
3The complainant can do this by showing, e.g., that a discriminatory
reason motivated the agency, that the agency's action was more likely
than not motivated by discriminatory animus, or that the agency's reason
was influenced by legally impermissible criteria.
4In his appeal, complainant noted that he was given a new rehabilitation
job offer in March 2004, following the change in his duties.