0120083694
02-10-2009
Arturo R. Tavera, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arturo R. Tavera,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083694
Agency No. 1E-801-0077-06
Hearing Nos. 541-2006-00196X & 541-2008-00037X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity
Commission (EEOC or Commission) accepts complainant's appeal from the
agency's July 18, 2008 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. Complainant alleged that the
agency discriminated against him on the bases of race/national origin
(Hispanic) and reprisal for prior protected EEO activity under when:
1. on January 9, 2006, he was told by his supervisor that if he wanted
to be promoted to a certified supervisor in the motor vehicle services,
he would have to drop his pending civil action,
2. on January 19, 2006, he was not selected for the position of
supervisor, transportation operations, EAS-17, vacancy announcement 555,
and
3. on January 27, 2006, his request for certain hours and days off was
denied by his supervisor.1
Following an investigation and a hearing, an EEOC Administrative Judge
(AJ) found no discrimination on the above claims. The agency issued a
final order implementing the AJ's decision, which complainant appeals.
In finding no discrimination on claim 1, the AJ made a credibility
determination and credited the supervisor's denial that he told
complainant if he wanted to be promoted to a certified supervisor, he
would have to drop his pending civil action. On claim 2, the AJ found
that complainant was not selected because the selecting official decided
to laterally move another supervisor, at the supervisor's request, into
the position. On claim 3, the AJ credited the supervisor's explanation
that he denied the request because complainant gave him little time
to consider it and the change in schedule would not meet specified
operational needs.
On appeal, complainant disputes the AJ's credibility findings and the
way the AJ weighed the evidence. He argues that he is entitled to a de
novo review. In opposition to the appeal, the agency argues that the
AJ's decision should be upheld.
As an initial matter, the factual findings in the AJ's decision will
be upheld if they are supported by substantial evidence, since there
was a hearing. 29 C.F.R. � 1614.405(a). While complainant disputes
the AJ's credibility findings and the way the AJ weighed the evidence,
the AJ's findings were supported by substantial evidence.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the AJ's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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 10, 2009
__________________
Date
1 Complainant's appeal does not address claim 3, and it is not clear
whether he is appealing this matter. Nevertheless, we will address
it herein.
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0120083694
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013