Robert A. Schmidt, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 5, 2001
05980046 (E.E.O.C. Jan. 5, 2001)

05980046

01-05-2001

Robert A. Schmidt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Robert A. Schmidt v. United States Postal Service

05980046

January 5, 2001

.

Robert A. Schmidt,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05980046

Appeal No. 01956573

Agency No. 4-D-290-1066-94

Hearing No. 110-95-8084X

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Robert

A. Schmidt v. United States Postal Service, EEOC Appeal No. 01956573

(September 16, 1997).<1> EEOC Regulations provide that the Commission

may, in its discretion, reconsider any previous Commission decision

where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

Complainant, a city carrier at the agency's Bennettsville, South Carolina

facility, filed a formal EEO complaint with the agency, alleging that the

agency had discriminated against him on the bases of age (DOB: January

3, 1939), sex (male), physical disability (heart condition/angina),

and reprisal (prior EEO activity)<2> when he was subjected to harassment

and denied equal overtime opportunities ongoing since March 1993. At the

conclusion of the investigation, complainant was provided a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following the hearing, the AJ issued a decision finding no

discrimination.

In finding no discrimination, the AJ concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions. The AJ accepted

the agency's denial that it subjected complainant to harassment.

As to the claim that the agency denied complainant overtime, the agency

explained that it had hired other individuals in the fall of 1992 to

perform the duties complainant had performed in the past. This meant

that the agency had no reason to use complainant to work overtime after

these individuals were hired.

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 and/or retaliation. In reaching this conclusion, the AJ

found that complainant merely asserted that the agency's position was

incorrect and failed to demonstrate that he was subjected to harassment.

Further, the AJ found that complainant failed to rebut the agency's

argument that it had no reason to use complainant for overtime based on

the hiring of new individuals in 1992.

The agency's final decision implemented the AJ's decision. Complainant

appealed the agency's decision to the Commission. The previous

decision found that the AJ correctly determined that complainant had not

established by preponderant evidence that the agency had discriminated

against him. Accordingly, the previous decision adopted the AJ's

recommended findings of fact and conclusions of law. In his request

for reconsideration, complainant reiterates the arguments he raised in

his initial appeal.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an Administrative Judge 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 that discriminatory intent did not exist 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 properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated

by discriminatory animus toward complainant's sex, age, or physical

disability. Therefore, we discern no basis to disturb the AJ's

decision.

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 01956573 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

January 5, 2001

__________________

Date

1On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 29 C.F.R. Part 1614 in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.

2The record indicates that complainant opposed discriminatory treatment

of a Co-worker beginning in 1993 and was a witness in her EEO Hearing

which took place in May 1994.