Hollie J. Brown, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 29, 2001
05A10508 (E.E.O.C. Jun. 29, 2001)

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