0120092140
11-18-2009
Babu K. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Babu K. Thomas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120092140
Hearing No. 480-2008-00107X
Agency No. 4G770044907
DECISION
On April 22, 2009, complainant filed an appeal from the agency's March 17, 2009 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 appeal is deemed timely and is accepted 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 the events giving rise to this complaint, complainant worked as a City Carrier at the agency's facility in Richmond, Texas.
On December 19, 2007, complainant filed an EEO complaint alleging that he was discriminated against on the bases of race (Asian/Indian), national origin (Indian), color (brown) and in reprisal for prior protected EEO activity.
By letter dated January 11, 2008, the agency accepted complainant's complaint for investigation.
At the conclusion of the investigation, complainant was provided 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. The AJ held a hearing on February 20, 2009. At the hearing, the AJ defined complainant's claim in the following fashion:
Did the agency discriminate against or subject complainant to a hostile work environment when:
1. on an ongoing basis beginning in August 2007, the agency harassed complainant with regard to work restrictions and his duty performance and made derogatory comments; and
2. on or about September 14, 2007, the agency subjected complainant to a pre-disciplinary interview and threatened unspecified disciplinary action. Hearing Transcript (HT) at 6.
The AJ issued a decision on March 5, 2009, finding no discrimination. The AJ found that complainant failed to establish, by a preponderance of the evidence, that the agency took the actions at issue based on his protected classes. Specifically, the AJ stated that the hearing testimony reflected that complainant's co-workers and agency officials viewed complainant "as a slacker...and not carrying his weight."
The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant makes numerous arguments that the AJ's decision finding no discrimination is improper. For example, complainant asserts that the AJ was biased and did not rule expeditiously on various motions filed by complainant. Complainant also asserts that his representative was ineffective.
In response, the agency requests that we affirm its final order implementing the AJ's finding of no discrimination.
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, � VI.B. (November 9, 1999).
The Commission notes that the AJ conducted the hearing via videoconference. In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues, the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objection of the parties, if any. Id. Upon review of the record, the Commission concludes that the AJ did not abuse his discretion by conducting the hearing via videoconference.
Regarding complainant's contention that the AJ exhibited bias, upon review of the record we find that the record is devoid of evidence that the AJ exhibited bias. The Commission notes that an AJ has broad discretion in the conduct of a hearing under EEOC regulations and Commission precedent. See 29 C.F.R. � 1614.109; see also EEOC Management Directive 110 (MD-110), Chapter 7, at 9-10 (1999). Further, in order for a hearing to be deemed unfair the complainant must establish a "substantial showing of personal bias." Upon review of the record, we find that the record is devoid of evidence that the AJ exhibited bias. In addition, we do not find that the AJ abused his discretion with respect to his actions on the various motions complainant filed.
Complainant alleges that he was subjected to a hostile work environment and harassment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) s/he is a member of a statutorily protected class; (2) s/he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
There is substantial evidence in the record to support the AJ's finding that complainant failed to establish a prima facie case of harassment. While complainant alleged that he was subjected to derogatory comments based on his protected classes when he requested overtime, the record contains testimony from co-workers and agency officials reflecting that they perceived complainant as requesting overtime when it was not needed and not "carrying his weight." HT at 127-28; 157-58; 223; 259-260. The record also contains a copy of the EEO Counselor's Report. Therein, the EEO Counselor states that complainant's supervisor asserted he gave complainant an investigative interview. Complainant's supervisor asserted that complainant failed to follow instructions to keep his route to eight hours. Specifically, complainant's supervisor stated that complainant requested three hours of overtime and that he instructed complainant to leave three hours of mail at the facility. The supervisor stated that a street observation revealed that complainant completed his route one hour and ten minutes prior to the end of his tour. As set forth above, complainant failed to establish that the alleged incidents were based on his protected classes.
While complainant, on appeal, asserts that his representative was ineffective, we note that the record is devoid of evidence that complainant did not freely choose his representative. In addition, a complainant is responsible for proceeding with the complaint whether or not he or she has designated a representative. 29 C.F.R. � 1614.605(e).
CONCLUSION
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 implementing the AJ's finding of no discrimination.
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
November 18, 2009
Date
2
0120092140
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092140