0120103642
01-07-2011
Juan Layme, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Juan Layme,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120103642
Hearing No. 51-2009-00264X
Agency No. 4A-006-0070-08
DECISION
Complainant filed an appeal from the Agency's July 29, 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts
it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Bulk Mail Technician at the Agency's Business Mail Entry Unit facility
in San Juan Post Office, San Juan, Puerto Rico. On February 27, 2009,
Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Peruvian), national origin (South
American), sex (male), color (brown), age (55), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when:
1. On May 8, 2008, Complainant was not selected for the position
of supervisor, Business Mail Entry Clerk in San Juan, Puerto Rico
2. Complainant was denied training on December 11, 2008.
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
requested a hearing and the AJ held a hearing on April 21, 2010. The AJ
subsequently issued a decision on July 20, 2010 (AJ Decision).
In her decision, the AJ found that with respect to claim (1)
(non-selection), that Complainant applied for the position of Business
Mail Entry Clerk in May 2008. Complainant was found qualified, the AJ
noted, but Complainant was not selected. AJ Decision, July 20, 2010,
at (unnumbered) 2. The AJ found that no candidate was selected and
that the Agency filled the position with an employee, E1, who requested
a lateral transfer. The AJ noted that E1 was working as an EAS-17
Distribution Operations Supervisor when she requested a non-competitive,
lateral transfer to the vacant EAS-17 position. The AJ considered that
the Agency's internal policies provide that management may consider
a non-competitive lateral reassignment or a change to a lower grade
level. Id. at 2, 3. Accordingly, the AJ found the Agency articulated
a legitimate reason for its actions which Complainant failed to show
was a pretext for discrimination on any basis.
With respect to claim (2), the AJ found that the Agency's agreement
with members of the appropriate bargaining unit prevent the Agency from
providing training that is not directly related to the position the
employee holds because it would be prepare the employee for a higher
position at the expense of other employees. Id. at 3. The AJ found
that Complainant was provided with appropriate training for his position
and that Complainant was properly denied training he wished to take
because it was not appropriate for his current position. Id. at 6.
The AJ found that the Agency's training decisions were consistent with
its own regulations for the assignment of training. Accordingly, the AJ
found that Complainant did not show that discrimination on the identified
bases occurred. Id.
The Agency subsequently issued a final order on July 29, 2010, adopting
the AJ's finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
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).
In the instant case, we find no basis upon which to disturb the AJ's
findings and her conclusion that no discrimination occurred as alleged.
We find the evidence presented at the hearing of Complainant's complaint
supports the AJ's decision. Specifically, we note the testimony of
Complainant's witnesses who confirmed that the Agency's policy is to
provided appropriate training to the position to which an employee is
assigned and to deny training that would enable the employee to qualify
for promotional opportunities by teaching the employee skills needed
for higher level positions. See, for example, Hearing Testimony of
the Agency former Training Coordinator for the Puerto Rico District,
Hearing Transcript (Hr'g Tr.) April 21, 2010, at 29.
We further note the evidence shows that E1 was placed in the position
for which Complainant applied, (Business Mail Entry Unit, EAS 17),
without competition, through a lateral reassignment at the request of E1,
and that no selection was made from the list of eligible competitive
candidates who applied for the position. See, Hr'g Testimony of the
Agency District Marketing Manager, Id. at 72.
We find the AJ's decision is supported by the evidence, and no evidence
that Complainant's race, sex, age, national origin, color or prior
protected activity played any role in the Agency's decisions as alleged
in the complaint.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final
decision, 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
January 7, 2011
__________________
Date
2
0120103642
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103642