0120110850
08-30-2012
Donald K. Adler, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Donald K. Adler,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120110850
Hearing No. 520200900219X
Agency No. 4A110015408
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 28, 2010 final order concerning his equal employment opportunity (EEO) complaint alleging 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.
At the time of events giving rise to this complaint, Complainant worked as a Sales Service Distribution Associate at the Agency's Bath Beach Post Office in Brooklyn, New York. Complainant alleged that the Agency discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity (EEO settlement agreement signed on June 20, 2008) when, from July 14, 2008 to August 8, 2008, he was denied overtime opportunities while serving on jury duty.
After a March 12, 2010 hearing, an EEOC Administrative Judge (AJ) issued a decision finding that Complainant failed to prove that the Agency discriminated against him as alleged.
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. Nat'l Labor Relations Bd., 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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.B. (Nov. 9, 1999).
Upon review, we find that substantial evidence in the record supports the AJ's finding that the Agency did not discriminate against Complainant on the bases of sex and reprisal when, from July 14, 2008 to August 8, 2008, he was denied overtime opportunities while serving on jury duty.
The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions. In so finding, the AJ relied on the testimony of Complainant's First Level Supervisor (S1) that he denied Complainant's request for overtime because of the Agency's policy that employees are not allowed to work overtime while serving on jury duty. Hearing Transcript (H'rg Tr.), at 83-84, 89. In addition, the AJ relied on S1's testimony that the fact that Complainant had been permitted to work one day of overtime during the relevant period was a mistake by another supervisor that he corrected.1 Id. at 89-90.
The AJ found that Complainant failed to show that the Agency's legitimate, nondiscriminatory reason was a pretext for sex or reprisal discrimination. Specifically, the AJ found that the one situation in which S1 allowed a female co-worker (C1) to work overtime while serving on jury duty was not comparable to Complainant's situation. In so finding, the AJ relied on S1's testimony that C1's situation occurred in 2005 (almost three years before) and was a one-time exception to the Agency's policy because there was an emergency staff shortage. Id. at 84-85. Moreover, the AJ found that there was no evidence that the Agency's policy was based upon, or implemented against Complainant due to, an impermissible consideration under Title VII. We note that Section 516.32 (Combination of Court Leave and Postal Duty) of the Employee and Labor Relations Manual specifically states, "No overtime is allowed for court service performed while an employee is on court leave or for a combination of postal work and such court service." ROI, Ex. 10, at 4.
On appeal, Complainant argued that the AJ should have recused himself because he was not impartial and had a personal relationship with the Agency attorney. As evidence of this, Complainant asserted that, at the hearing, the AJ and the Agency attorney "asked each other how their family was doing." In opposition to Complainant's appeal, the Agency attorney stated that her relationship with the AJ is strictly professional and is limited to litigating claims before the EEOC on behalf of the Agency. In addition, the Agency's attorney stated that she had no knowledge of the AJ's family circumstances and that any such questions were merely out of courtesy.
Aside from Complainant's speculation, we find no evidence that the AJ should have recused himself or was biased in favor of the Agency. An AJ generally should not participate in a hearing where a party is a member of his household, a close relative, the employer of his spouse, a parent or dependent child, someone with whom he has a business relationship, or a former employer (within the past year). See Equal Employment Opportunity Commission Handbook for Administrative Judges, Ch. 7, � III.A.1. (July 1, 2002). There is no evidence that any of these types of relationships, however, exist in this case. We are not convinced by Complainant's argument that a personal relationship existed simply because the AJ and the Agency attorney may have exchanged a few pleasantries at the start of the hearing. Moreover, Complainant has not shown how he was prejudiced by the AJ's conduct. We note that, during the hearing, the AJ was fully aware of Complainant's needs as a pro se complainant; the AJ gave him general instructions about the proceedings, explained to him the burdens of proof, and clarified the difference between his role as a representative versus his role as a witness. Hr'g Tr., at 6-13.
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 order because the AJ's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by substantial evidence in the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
_____8/30/12_____________
Date
1 The record reflects that Complainant worked eight hours of overtime on July 19, 2008. Report of Investigation (ROI), Ex. 5, at 1; Ex. 6, at 2.
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0120110850
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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