0520110118
02-14-2011
Steve Lopez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Steve Lopez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Request No. 0520110118
Appeal No. 0120102246
Hearing No. 540-2009-00104X
Agency No. 4E-840-0008-08
DENIAL
Complainant timely requested reconsideration of the decision in Steve
Lopez v. U.S. Postal Service, EEOC Appeal No. 0120102246 (September
23, 2010). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for
reconsideration by demonstrating that the appellate decision: (1)
involved a clearly erroneous interpretation of material fact or law;
or (2) will have a substantial impact on the policies, practices, or
operations of the Agency.
BACKGROUND
In the underlying case, Complainant alleged that the Agency discriminated
against him on the bases of race (unspecified) and national origin
(Mexican) when, on December 6, 2007, his first-level supervisor (S1)
instructed a white female Mail Carrier (C1) not to talk to Complainant
and instructed Complainant that he could not talk to the "white girls."
The Commission affirmed the Agency's final order, which implemented
the EEOC Administrative Judge's (AJ) finding of no discrimination.
The Commission found that substantial evidence supported the AJ's
finding that Complainant failed to establish a claim of hostile work
environment harassment because: (a) Complainant failed to establish
that S1's comment was based on his race or national origin; (b) the
Agency offered legitimate, nondiscriminatory reasons for S1's actions,
which Complainant failed to rebut; and (c) the contested actions were not
sufficiently severe or pervasive as to rise to the level of discriminatory
harassment.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant, through his attorney,
argued that the appellate decision involved the following clearly
erroneous interpretations of material fact or law: (1) the filing date
of Complainant's formal complaint and the date the AJ held the hearing;
(2) the context of S1 approaching Complainant; (3) the context of the
conversation between S1 and Complainant; (4) the issue of whether the
incident was sufficiently severe or pervasive; and (5) pretext.
Regarding (1), Complainant argued that such simple mistakes are not
dispositive but "may manifest a less than thorough evaluation of
[his] arguments in his initial appeal." Regarding (2), Complainant
argued that substantial evidence did not support the AJ's finding
that S1 approached him to encourage him to focus on his assignment.
Specifically, Complainant asserted that, because the Agency produced no
evidence that his productivity was at issue, the AJ erred in assuming
that S1's actions were normal supervision and should have assumed
that S1 was motivated by a desire to bar him from associating with his
coworkers. Regarding (3), Complainant argued that substantial evidence
did not support the AJ's finding that S1's statement to Complainant
("they are all white girls" or "they are all white girls to you") was
innocent, free of racial tones, and merely S1's way of emphasizing that
Complainant needed to stop talking to other employees and return to work.
Specifically, Complainant asserted that substantial evidence supported
the proposition that he was being productive and that S1 wanted to bar
him from interacting with his coworkers.
Regarding (4), Complainant argued that substantial evidence did not
support the AJ's finding that this incident was not severe or pervasive
because the AJ erred in considering this incident in isolation.
Specifically, Complainant asserted that the December 6, 2007 incident
was simply the culmination of a series of actions and comments by S1
and by his prior supervisors. In addition, Complainant asserted that
the AJ erred in focusing only on whether S1's reference to "white
girls" was severe or pervasive; the AJ should have considered that
S1's instruction to not talk to coworkers was severe and pervasive
because it would "permeate and chill" all his future dealings with
his coworkers. Regarding (5), Complainant argued that substantial
evidence did not support the AJ's finding that S1's comment to him was
motivated by discriminatory animus. Complainant emphasized that there
was no legitimate, nondiscriminatory reason for S1 to approach him in
the first place because he was doing his work, he was being productive,
and he was helping C1 learn her route.
Finally, Complainant argued that the appellate decision will have a
substantial adverse impact on the practices of the Agency because "it will
have a definite adverse impact on the ability of USPS employees to help
each other in the performance of their duties." Complainant asserted
that, if the appellate decision stands, "supervisors will have carte
blanche to forbid employees from interacting with and helping other
employees" because the Agency will not need to justify such directions
by linking them to productivity.
In response, the Agency contended that Complainant's request did not
meet the criteria for reconsideration. First, the Agency argued that
Complainant did not demonstrate that the appellate decision contained a
clearly erroneous interpretation of material fact or law. The Agency
asserted that Complainant did not demonstrate a clearly erroneous
interpretation of law because he did not include any legal citations in
his request. The Agency asserted that Complainant did not demonstrate a
clearly erroneous interpretation of fact because he simply argued that
the AJ and the Commission "came to the wrong conclusions," which is an
assertion insufficient to justify reconsideration. The Agency noted that
Complainant's arguments on reconsideration "are merely rehashing of old
arguments already considered and rejected" but, to the extent that his
arguments were reconsidered, the Agency reasserted its own arguments it
had previously set forth in its appeal brief. Second, the Agency argued
that Complainant did not demonstrate that the appellate decision will
have a substantial impact on the policies, practices, or operations of
the Agency. The Agency asserted that, to follow Complainant's logic,
the Commission would have to conclude that employees should have carte
blanche to leave their work areas at will, without permission, and in
abandonment of their own job duties as long as the employees say they
are "helping" another employee, where such help was neither solicited
or directed, and despite the result that said employees have abandoned
their work. The Agency asserted that such a conclusion would lead to a
"truly untenable adverse effect" on the practices and operations of the
Agency, specifically its power to direct its workforce.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request does not establish that
the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
Agency. Regarding (1), we find that there is no evidence to support
Complainant's assertion that minor date-related mistakes "may manifest a
less than thorough evaluation of [his] arguments in his initial appeal."
Regarding (2), (3), (4), and (5), we find that Complainant is restating
prior arguments he already made on appeal.1 Complainant is reminded that
a "request for reconsideration is not a second appeal to the Commission."
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Ch. 9, � VII.A (Nov. 9, 1999). We find that the appellate
decision was correct with respect to its determinations regarding
arguments (2), (3), (4), and (5); therefore, we find that Complainant did
not demonstrate that the underlying decision involved a clearly erroneous
interpretation of material fact or law. Regarding Complainant's argument
that the appellate decision "will have a definite adverse impact on the
ability of USPS employees to help each other in the performance of their
duties", we find that Complainant has not persuasively established that
the appellate decision will have a substantial impact on the policies,
practices, or operations of the Agency.
CONCLUSION
After reconsidering 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), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120102246 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (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
___2/14/11_______________
Date
1 On appeal, Complainant had disputed the AJ's finding that there
was an objectively legitimate reason for S1 to perceive he had a
problem staying on task and had argued that the Agency's evidence was
inadequate to support the proposition that he had productivity problems.
In addition, Complainant had disputed the AJ's finding that S1's comment
was unconnected to his race or national origin and had argued that the
comment could only mean that S1 considered him to be of an inferior race
and national origin. Further, Complainant had disputed the AJ's finding
that S1's actions and comments were insufficiently severe or pervasive
and had argued that the incident altered the terms and conditions of his
employment by creating a working environment he found hostile towards
his interest in having normal relationships with his coworkers.
??
??
??
??
2
05-2011-0118
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110118