05A10508
06-29-2001
Hollie J. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Hollie J. Brown v. United States Postal Service
05A10508
June 29, 2001
.
Hollie J. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A10508
Appeal No. 01A04753
Agency No. 1D-251-1006-96
Hearing No. 170-A0-8123X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Hollie
J. Brown v. United States Postal Service, EEOC Appeal No. 01A04753
(February 27, 2001). 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).
In EEOC Appeal No. 01A04753, the Commission found that complainant was
not discriminated against on the basis of his race (Black) when he was
required to take a lunch break while working on his nonscheduled days.
In his request for reconsideration, complainant argues that the appellate
decision involved a clearly erroneous interpretation of material fact,
in that, his supervisor maliciously lied in his testimony before the EEOC
Administrative Judge (AJ). Complainant maintains that: the date which
the supervisor identified him as eating in the break room had to have
occurred before September 1995 because someone else was acting manager
until August 31, 1995; the manager never saw him eating in the break
room because he did not go to the break room when he worked his day off;
he was treated differently than at least seven Caucasian mail handlers
who were not required to take a lunch break; and management's stated
reason for requiring a lunch break changed from health and safety to the
needs of the mail without producing any supporting evidence. The agency
did not reply to complainant's request to reconsider the appeal decision.
The Commission notes that the AJ found that complainant had established
a prima facie case of discrimination based on race because the record
clearly demonstrated that others not of his protected group were treated
more favorably. The AJ then found that the agency had articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
the manager had instructed his supervisors to instruct their employees
to take a lunch break when working their tours of duty on nonscheduled
days. The AJ also found that it was the policy of the manager that anyone
who worked more than six hours had to take a lunch break and it was the
responsibility of the individual supervisors to monitor their employees.
The record reveals that the supervisors indicated that it was difficult
to monitor employee compliance because of varying employees lunch times
and large operational areas to supervise. The AJ found that complainant
had demonstrated that he was singled out with regard to the enforcement
of the lunch break policy but he had failed to show that such singling
out was motivated by impermissible consideration of his race.
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).
We note that the record reveals that both those in complainant's
protected group and those not in his protected group worked throughout
lunch on their nonscheduled days. It was not until the manager started
his position in September 1995, that the policy of taking lunch when
working a nonscheduled day was enforced. The record also reveals that
other employees have also been directed to take lunch breaks since
complainant was initially directed.
Therefore, 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). It is the decision of the Commission to deny
the request since complainant has not demonstrated that discriminatory
animus was involved in his being directed to take a lunch break when
working his nonscheduled days. The decision in EEOC Appeal No. 01A04753
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
June 29, 2001
__________________
Date