0120093829
07-13-2011
Harvey Ross, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Harvey Ross,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120093829
Hearing No. 570-2008-00140X
Agency No. 1K-204-0025-07
DECISION
On September 14, 2009, Complainant filed an appeal from the Agency’s
August 13, 2009, 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected
to retaliation when on June 29, 2007, he was issued a Notice of 14-day
Suspension for Unsatisfactory Attendance.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Maintenance Mechanic at the Agency’s Southern Maryland Bulk Mail
Center facility in Capitol Heights, Maryland. While attending training
out of state, he was told that his wife would be undergoing surgery.
He notified his supervisor that he would be leaving the training early
in order to care for his wife. Although Complainant requested 40 hours
of leave, the record indicates that he only had 24 hours of leave
to use. As a result of Complainant’s absence, management reviewed
Complainant’s leave history, and it was noted that Complainant had
been suspended on three prior occasions, (10/16/05, 1/29/06, 6/6/06),
for failure to meet attendance requirements. As a result of this
information, management issued Complainant a Notice of Suspension for
Unsatisfactory Attendance. Management later learned that some of the
documents that it relied upon to issue the Notice of Suspension had been
reduced or rescinded. Complainant did not serve the suspension and it
was rescinded through the grievance process.
On August 1, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of reprisal for prior
protected EEO activity when he was issued a Notice of 14-day Suspension
for Unsatisfactory Attendance. An investigation was initiated. At the
conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on July 14, 2009, and
issued a decision on August 6, 2009.
The AJ, in a bench decision, held that Complainant failed to demonstrate
that he was subjected to discrimination as alleged. Specifically,
the AJ found that while Complainant established a prima facie case of
reprisal, the Agency articulated legitimate, nondiscriminatory reasons
for its actions, namely, that management based their decision to issue
Complainant the Notice of Suspension on his prior disciplinary history.
The AJ noted that although the suspension history that management
relied upon was found not to have been valid, management believed that
it was legitimate when the decision to suspend Complainant was made.
Additionally, the AJ noted that while the supervisors involved may have
been incompetent and poor managers, Complainant had not shown that their
actions were because of his prior EEO activity.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
CONTENTIONS ON APPEAL
Briefs were not submitted by either party on appeal.
STANDARD OF REVIEW
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. 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 EEOC Management Directive 110,
Chapter 9, at § VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
In the instant case, the Commission finds that the AJ correctly found
that the evidence does not support Complainant’s contention that he
was discriminated against. The AJ found that even though Complainant
established a prima facie case of reprisal discrimination, the Agency
articulated legitimate, nondiscriminatory reasons for its actions, namely,
that the decision to suspend Complainant was based on information that was
later found to be invalid. The AJ determined however, that at the time
the decision to suspend Complainant was made, management believed the
record to be true. The AJ also correctly found that Complainant failed
to provide any evidence which showed that the Agency’s articulated
legitimate, reasons were pretext for discrimination. Accordingly,
we find that the AJ’s finding of no discrimination is supported by
substantial evidence in the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order finding no discrimination.
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
__7/13/11________________
Date
2
0120093829
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093829