Frank Modafferi, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionSep 10, 2009
0120082496 (E.E.O.C. Sep. 10, 2009)

0120082496

09-10-2009

Frank Modafferi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Frank Modafferi,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Appeal No. 0120082496

Hearing No. 471-2007-00076X

Agency No. 1J-485-0008-06

DECISION

On May 7, 2008, complainant filed an appeal from the agency's April

8, 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. 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.

ISSUE PRESENTED

The issue presented is whether the Administrative Judge properly found

that complainant had not been discriminated against as alleged.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Mail Handler/Equipment Operator, level 5, at the agency's Airport

Mail Center (AMC), Brownstone Annex facility in Detroit, Michigan.

On December 15, 2006, complainant filed an EEO complaint alleging that

he was discriminated against on the bases of race (white) and sex (male)

when on August 9, 2006, he was displaced from his duty assignment at

the AMC-DTW.

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 denied the agency's motion for a decision

without a hearing, and subsequently held a hearing on October 4, 2007.

The AJ issued a decision on March 31, 2008.

In her decision, the AJ made the following findings of fact.

Complainant's official duty assignment, beginning in 1990, was at the AMC.

In 1993, he began working at the Brownstone Annex facility as an equipment

operator; the Brownstone Annex is considered to be part of the AMC but is

in a separate building. Complainant's manager (MO-1, African American,

male) had repeatedly spoken to complainant about the necessity of keeping

the Brownstone Annex doors closed, which was required under agency policy.

On August 9, 2006, MO-1 arrived at the Brownstone Annex to find the doors

open once again. MO-1 testified that a few days prior to this he had

found the facility doors open and told complainant that if the doors were

open again, MO-1 would transfer complainant back to the main AMC facility.

Therefore, when MO-1 arrived on August 9, 2006 and found the doors open,

he informed complainant it was now time for him to begin reporting

to the AMC. Complainant's position description and pay level did not

change after he returned to the AMC in 2006. MO-1 replaced complainant

at the Brownstone Annex by soliciting volunteers based on seniority.

Complainant's replacement was an African American female.

The AJ assumed complainant had established a prima facie case of race

and sex discrimination as the agency had articulated a legitimate,

nondiscriminatory reason for its action. The agency's articulated reason

was that MO-1 had repeatedly spoken to complainant about keeping the

Brownstone Annex facility doors closed, and that complainant failed to do

so. MO-1 credibly testified that the doors had to remain closed because

of security considerations and that complainant would not consistently

comply with the policy. Complainant's argument that the agency's reasons

were pretext centered on the fact that MO-1 did not talk to complainant's

counterpart on the following shift (CO-1, African American, male) about

keeping the doors closed, although CO-1 was also responsible for keeping

the doors closed. The AJ found that CO-1 testified credibly that he

did keep the doors closed and that MO-1 did not need to speak to him

about it. Although complainant argued that his transfer back to the main

AMC facility violated the collective bargaining agreement (CBA) between

the agency and his representative labor union, complainant had already

filed a grievance on the matter which had been settled. The AJ noted

that complainant could not now use the EEO process to collaterally attack

the settlement reached under the CBA. She concluded that complainant

had not shown that he had been discriminated against as alleged.

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 argued that the AJ's decision was not supported

by substantial evidence. He argued that he established his prima facie

case of race discrimination because MO-1 did not speak to CO-1 about the

door issue, although CO-1 was also on duty at the time MO-1 found the

doors open. Complainant also argued that the AJ improperly found MO-1's

testimony to be credible. He further claims that the settlement agreement

reached under the CBA should not be considered because complainant was

not a signatory to the settlement agreement, and that the case law cited

by the AJ on collateral attack was inapplicable.

The agency submitted a brief in opposition to the appeal, in which it

urged the Commission to affirm its final order and the AJ's decision.

It noted that the AJ based her findings on credibility determinations made

following the hearing, which were supported by the substantial evidence

in the record. It also argued that the issue of the consideration of

the CBA and the settlement agreement had been raised by complainant and

that he cannot now argue that it was impermissibly considered by the AJ

in her analysis.

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).

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

In this case, we first note that the AJ had properly determined that this

was a case which was not appropriate for a decision without a hearing,

and she made numerous credibility determinations based on her observation

of the witnesses at the hearing. We find no support in the record for

any discrediting of the AJ's credibility determinations, as urged by

the complainant. The AJ properly applied the analysis established by

the McDonnell Douglas line of cases in her consideration of complainant's

claims of race and sex discrimination. She assumed, without specifically

examining such, that complainant had put forth a prima facie case of

discrimination. She found that the agency had articulated a legitimate,

nondiscriminatory reason for its actions, which we find was supported by

the testimony and evidence in the record. Finally, the AJ considered

complainant's arguments that the agency's reasons were pretext for

discrimination and she found that he had not shown this to be so.

Although complainant argued on appeal that the settlement agreement

reached under the CBA should not be considered because he was not

signatory to the agreement, we note that the AJ did not rely on the

evidence of the agreement in her conclusions that complainant had not been

discriminated against, and that the discussion of the agreement merely

gave context to the matter at hand. Established EEO cases regarding

collateral attack of issues settled in another forum clearly encompasses

any issues raised within a CBA context, contrary to complainant's claim.

As the agency pointed out, complainant himself raised the issue of the

settlement agreement at hearing. Any argument over its relevance or

applicability is tangential to the core issue of the matter before us,

i.e., whether complainant proved that he had been discriminated against

based on his race and sex.

CONCLUSION

Based on a thorough review of the record, and of the arguments submitted

by complainant and the agency on appeal, we find that the AJ's conclusions

that complainant has not shown that he was discriminated against based

on his race or sex, and the agency's implementation of that decision,

was correct, and we AFFIRM the agency'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

_____9/10/09_____________

Date

2

0120082496

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120082496