01A05193
05-23-2003
David R. Ream, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David R. Ream v. United States Postal Service
01A05193
May 23, 2003
.
David R. Ream,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05193
Agency No. 1H-302-1099-96
Hearing No. 110-98-8353X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on the
basis of race (Caucasian) when, in August 1996, he was changed from Tour
1 to Tour 2 and he was transferred from the North Metro Postal Facility
to the General Mail Facility.<1>
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). A hearing was held at which three witnesses (complainant and
the two alleged discriminating officials) testified. The AJ found that
complainant had not established a prima facie case of race discrimination
and that, even assuming he had, the agency had proffered a legitimate
non-discriminatory explanation for its actions: The agency explained
that complainant was a part-time flexible employee who did not have a
bid position, and whose assignment could be changed to meet the needs
of the service. In his decision, the AJ gave a detailed account of
the witnesses' testimony, which he described as consistent with the
affidavits included in the investigative file, and on appeal complainant
does not contest the AJ's decision on its merits. Rather, complainant
argues, inter alia, that he was denied official time to prepare his case,
and that the pre-hearing conference and hearing were both scheduled on
non-work days.<2>
The AJ found that complainant had adduced no evidence to establish that
the agency's explanation was a pretext for race discrimination, noting
that the seniority rules cited by complainant applied to full-time
regular, not part-time flexible, employees. 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.
Upon review of the record, the Commission finds that the AJ's
decision, in all material respects, correctly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
The Commission therefore discerns no basis to disturb the AJ's decision.
Accordingly, the Commission AFFIRMS the agency's final decision.
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
May 23, 2003
__________________
Date
1Complainant initially alleged three other claims of discrimination.
The agency's dismissal of those claims was affirmed by the Commission in
David R. Ream v. United States Postal Service, EEOC Appeal No. 01974013
(January 22, 1998).
2The agency is reminded that an employee is to be allowed a reasonable
amount of official time to prepare an EEO complaint and to respond to
agency and Commission requests for information. 29 C.F.R. � 1614.605(b).
Complainant, however, has not cited any specific instance when he
requested and was denied official time.