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
5
0120082496