0120113105
02-08-2013
Rodney L. Reaves, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Rodney L. Reaves,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120113105
Hearing No. 460-2010-00153X
Agency No. 1G771002610
DECISION
Complainant filed an appeal from the Agency's May 19, 2011, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part Time Flexible Tractor Trailer Operator at the P&DC facility in Houston, Texas.
On March 29, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on March 16, 2010, he was put off the clock without pay and, on April 2, 2010, he was issued a 14-day suspension based on alleged unacceptable conduct.
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 April 12, 2011. The AJ issued a bench decision on April 12, 2011. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that he was discriminated against as alleged.
In her decision, the AJ first found that Complainant had previously been issued discipline for unacceptable work performance and unacceptable conduct. The AJ then found that, on March 16, 2010, Complainant failed to follow management's instructions when he was asked to do a short run to deliver mail at another station that was several miles away. The trip would have been completed in less than an hour. The AJ also found that Complainant did not notify management that he did not go because he was so tired that he felt he was a danger to himself or others. The AJ stated that the record showed that Complainant had a lunch break that evening and did not notify the dispatch office that he was fatigued. After Complainant refused to do the run, the AJ found that he refused to leave the postal premises and was escorted off by postal police.
In her analysis, the AJ found that Complainant's latest prior EEO activity was in November 2009, and he was placed off the clock on March 16, 2010. The AJ found that even assuming that Complainant established a prima facie case of retaliation, Agency management provided a legitimate non-discriminatory reason for its action in that Complainant flatly refused to perform a task which he was directed to perform. Although he now claims he was too fatigued to do it, he did not report this to management at the time. Thus, the AJ found that Complainant did not prove he was discriminated against as alleged.
The instant appeal followed. In his appeal, Complainant basically disagrees with the AJ's decision and seeks compensatory damages.
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 reason to disturb the findings of the AJ. Substantial evidence of record supports the AJ's determination that Complainant flatly refused to deliver the mail to the other station as directed and the disciplinary action at issue was the result of that refusal. The evidence also supports the AJ's finding that Complainant had a record of previous disciplinary action for unacceptable conduct. Complainant has not proven, by a preponderance o the evidence, that the Agency's proffered reasons for its actions were a pretext for reprisal. Further, because he is not a prevailing party, he is not entitled to compensatory damages.
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 which adopted the AJ's finding of no discrimination or reprisal.
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
February 8, 2013
__________________
Date
2
0120113105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113105