Joseph Gomez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 22, 2005
01a40675 (E.E.O.C. Feb. 22, 2005)

01a40675

02-22-2005

Joseph Gomez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Joseph Gomez v. United States Postal Service

01A40675

February 22, 2005

.

Joseph Gomez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A40675

Agency No. 4G-770-0668-00

Hearing No. 330-A1-8114X

DECISION

Complainant filed this appeal from an October 14, 2003 agency decision

implementing the September 16, 2003 decision of the EEOC Administrative

Judge (AJ) finding no discrimination.

Complainant alleged that the agency discriminated against him on the

bases of race (Hispanic), national origin (Hispanic), sex (male), color

(brown), and reprisal for prior EEO activity when he was sent home on

administrative leave and was issued a 14-day suspension for improper

conduct and absence without leave.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an AJ.

Following a hearing, the AJ issued a decision finding no discrimination.

The AJ concluded that complainant established a prima facie case of race,

color, sex, and national origin discrimination. The agency asserted

that complainant was issued a 14-day suspension for improper conduct

(regarding throwing a trophy) and absence without leave. The AJ

concluded that the agency record revealed another nondiscriminatory

reason for complainant's suspension. The AJ found that complainant's

supervisor was not struck by the trophy, but that the trophy incident was

concocted in order to remove complainant from the workplace during the

investigation of the postal inspectors on August 16, 2000. Specifically,

the AJ found that the real reason for the agency's actions in suspending

complainant was because of his involvement in the bomb threat grievance,

the filing of which infuriated management.

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.

The Commission notes that an AJ has broad discretion in the conduct of

a hearing, including such matters as discovery orders and the drawing

of adverse inferences and other sanctions. See 29 C.F.R. � 1614.109(e);

Malley v. Department of the Navy, EEOC Appeal No. 01951503 (May 22, 1997).

The Commission also notes that credibility determinations of an 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).

The record reveals that complainant was accused of striking his

supervisor's right arm with a trophy on August 16, 2000, after she asked

complainant to remove the trophy at the top of complainant's letter

case for safety reasons. The record also reveals that complainant

denied the accusation. The record further reveals that complainant

was sent home on August 16, 2000, purportedly as a result of the trophy

incident. The record reveals that complainant did not report to work the

following day, although he was instructed to do so by his supervisor.

Complainant testified that he was not going to return to the workplace

while postal inspectors were intimidating employees while investigating

union activities. The record reveals that in September 2000, complainant

was issued a letter of suspension for improper conduct and absence without

leave. The record also reveals that complainant grieved his suspension.

The record further reveals that the grievance was settled in March 2001,

with complainant's suspension being reduced to a letter of warning.

Contained in the record is a June 5, 2000 grievance filed by letter

carriers regarding a bomb threat that occurred in complainant's facility

on May 26, 2000. The letter carriers alleged in their "class action"

grievance that the proper safety procedures were not followed by

management in addressing the bomb threat. Complainant was the steward

for the grievance. Discrimination was not alleged in the grievance.

The record also contains a June 15, 2000 electronic mail message

purportedly from the Manager of Postal Operations (MPO) to the Manager

of Customer Service (MCS) telling the MCS not to let complainant and the

other union steward (Person A) push her around; that he (MPO) was not

going to tolerate complainant or Person A standing up to him in public;

that complainant and Person A blew the bomb threat out of proportion;

and to dig up anything that she could find on complainant and Person A

and fire the two. Complainant testified that on August 16, 2000, his

work facility was investigated by postal inspectors as a result of the

"class action" grievance.

The Commission finds that the AJ's findings of fact are supported by

substantial evidence in the record and that the AJ's decision properly

summarized the relevant facts and referenced the appropriate regulations,

policies, and laws. Further, construing the evidence in the light most

favorable to complainant, we find that complainant failed to establish

that the agency's actions were motivated by discriminatory animus toward

complainant.

Accordingly, the agency's finding of no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 22, 2005

__________________

Date