0120091883
06-15-2009
Hector R. Figueroa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Hector R. Figueroa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091883
Agency No. 1G-761-0014-08
Hearing No. 450-2008-00266X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 12, 2009 final action 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against him on the bases of sex (male), national origin (Puerto Rico), disability (cervical) and in reprisal for prior EEO activity when:
beginning on or about September 10, 2007, he was denied the opportunity to work holidays, overtime and days-off.
A hearing was held before an EEOC Administrative Judge (AJ).1 After considering the testimony of the witnesses, the AJ determined that complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of disability and retaliation.2
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 a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
On appeal, complainant has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the AJ made a thorough and detailed analysis in his final decision. Therein, the AJ found that complainant did not establish a prima facie case with respect to the raised bases. Moreover, the AJ found that the agency articulated legitimate, non-discriminatory reasons for its actions which complainant did not prove were pretext for discrimination.
The AJ's analysis, in pertinent part, is as follows. During the relevant time, complainant was limited to lifting 20 pounds continuously and 30 pounds intermittently. He was also initially limited in the ability to work on automation machines for more than two hours at a time. However, his condition improved to the point where he could work "in automation" for up to four hours per day. After the investigation of the instant complaint, the time that complainant could perform automation work was increased to eight hours per day. However, complainant advised his supervisor of discomfort after he worked six hours in automation, causing the supervisor to relieve him of automation work after six hours. Complainant stated that he was informed that he had to work a full eight-hour shift in automation before he would be permitted to work overtime, and that the agency would have to provide him automation work during overtime hours.
However, the AJ determined that the record supported a finding that the agency required all workers who are unable to work a full shift in automation to exhaust whatever hours they could work in automation during the regular shift. By doing so, the agency was obtaining full value for its pay on its automated processes without have to pay time and one-half for work it could obtain at the regular pay rate. The AJ found that, "[T]o do otherwise, would be to waste [the agency's] resources and be burdened unnecessarily with overtime pay."
Moreover, the AJ noted that it appeared that complainant was permitted to earn overtime by working on his off-days, "after he filed this claim but that he was not permitted to do so prior to the filing of this claim." The AJ found that to the extent that complainant was paid overtime under such circumstances, as a result of his filing his EEO claim, it provided him with what he wanted, and that to claim that such actions constituted reprisal "is simply fuzzy thinking."
Finally, the AJ concluded that complainant failed to prove, by a preponderance of the evidence, that the agency's proffered reasons for its actions were pretext for discrimination.
Based on a thorough review of the record in its entirety, and consideration of statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.3
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
June 15, 2009
__________________
Date
1 The record reflects that during the hearing, complainant withdrew national origin as a basis. Hearing Transcript (HT) at 7. The record further reflects that complainant also withdrew sex as a basis. HT at 46.
2 For purposes of analysis only, and without so finding, the Commission presumes that complainant is an individual with a disability within the meaning of the Rehabilitation Act.
3 On appeal, complainant does not challenge an agency March 24, 2008 revised partial dismissal regarding another claim (that he was discriminated against on the basis of sex, national origin, disability and in reprisal for prior EEO activity when from June 2007 [until September 10, 2007], he was denied the opportunity to work the holidays, overtime and off days). Therefore, we have not addressed this issue in our decision.
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0120091883
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091883