01a00802
02-28-2000
Joe Arredondo III, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.
Joe Arredondo III, )
Complainant, )
) Appeal No. 01A00802
v. ) Agency No. 1G761-0020-97
) Hearing No. 310-99-5427X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Caucasian), national
origin (Hispanic), and reprisal (prior EEO activity), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Complainant alleges he was discriminated against
when, on October 25, 1996, he was issued a fourteen day suspension for
Unacceptable Performance/Failure to Follow Instructions. The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that complainant, a Motor Vehicle Operator at the
agency's Fort Worth, Texas facility, filed a formal EEO complaint with
the agency on February 5, 1997, alleging that the agency had discriminated
against him as referenced above.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a recommended decision
finding no discrimination.
The AJ found that complainant failed to establish a prima facie case
of race or national origin discrimination because he failed to provide
the names of individuals who committed similar infractions, but were
not issued suspensions. The AJ did find, however, that complainant
established an inference of discrimination with respect to his reprisal
claim.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the complainant
had been issued the suspension due to the following: (1) on October 4,
1996, complainant refused to attend a safety meeting; (2) on October 4,
1996, complainant refused to complete a load sheet; (3) on October 5,
1996, complainant used profanity and ran late while delivering his route;
and (4) on October 5, 1996, complainant walked out of a pre-disciplinary
meeting and refused to return despite his supervisor's instructions to
do so.
Specifically, the AJ found credible evidence that complainant knew he
needed to attend the safety meeting, yet he failed to do so. Although
there was no testimony produced at the hearing regarding complainant's
failure to complete load sheets, the AJ did note that the record revealed
complainant's supervisor had previously warned complainant about his
failure to complete load sheets. Regarding complainant's delivery run
on October 5, 1996, the AJ found that complainant became irate when he
was assigned that particular route. Complainant also failed to notify
his supervisor when he ran late, despite the availability of phones and
a reduction in the number of stops on the route. The AJ also found
credible testimony that complainant left a pre-disciplinary meeting,
and failed to return after being told to do so.
Finally, the AJ also found that complainant failed to prove, by a
preponderance of the evidence, that the agency's reasons for its actions
were pretext for discrimination. In so finding, the AJ noted that based
on both documentary and testimonial evidence contained in the record,
she did not find complainant's testimony and assertions to be credible.
The AJ noted that complainant's testimony was often unclear, and contrary
to the weight of the evidence.
On appeal, complainant contends that the AJ erred when she questioned
agency witnesses. Complainant argues that this was an attempt to bolster
the agency's position, rather than to clarify the record. Furthermore,
complainant argues through his attorney, that the AJ erred when she denied
a continuance due to a witness' failure to appear. Complainant's brief
also disputes the AJ's findings.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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). Moreover, we also note that the
credibility determinations of the AJ are entitled to deference due to the
AJ's first-hand knowledge, through personal observation, of the demeanor
and conduct of the witnesses at the hearing. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
We disagree with complainant's contentions on appeal, and remind
complainant that an AJ has broad discretion in the conduct of a hearing.
That includes, full responsibility for the adjudication of the complaint,
including overseeing the development of the record. 64 Fed. Reg. 37,644,
37, 657 (1999)(to be codified at 29 C.F.R. �1614.109(a)). We also note
that complainant failed to establish how he was prejudiced by the AJ's
decision to deny a continuance.
After a careful review of the record, the Commission finds that the
AJ's recommended decision summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Complainant failed to
present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's national origin or race. We discern no
basis to disturb the AJ's recommended decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
February 28, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.