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