0120082109
10-22-2009
Malcolm B. Mack, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Malcolm B. Mack, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120082109
Hearing No. 450-2007-00355X
Agency No. 1G-782-0004-07
DECISION
Complainant filed an appeal from an agency's final action dated March
21, 2008, finding no discrimination with regard to his complaint of
unlawful employment discrimination. In his complaint, dated March 24,
2007, complainant, a clerk/mail processing clerk at the agency's El
Paso Processing and Distribution Center in El Paso, Texas, alleged
discrimination based on race (White), national origin (German/Irish)
and in reprisal for prior EEO activity when he was issued a seven
day suspension on January 9, 2007. The record indicates that at the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). The AJ, after a hearing, issued a
decision finding no discrimination, which was implemented by the agency
in its final action.
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).
In this case, the AJ determined that, assuming arguendo that complainant
had established a prima facie case of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for the alleged
suspension. Complainant's supervisor indicated that he issued the
discipline because management received a sexual harassment complaint
from a contractor who ran a caf� on Postal property informing the
agency that complainant made sexual comments to the contractor's sixteen
year old daughter who worked in the caf� regarding her private parts.
Complainant's manager indicated that he investigated the matter and
received written statements about the incident from the girl confirming
complainant made sexual comments regarding her private parts. The AJ
found complainant failed to meet his burden to show that the agency's
actions were a pretext for discrimination.
On appeal, it appears that complainant, for the first time, is
contesting the fact that the hearing was conducted by video conference.
Specifically, complainant contends that a video conference hearing
was inappropriate since the sixteen year old girl was not present to
testify and the AJ was unable to determine whether she was a credible
witness. However, we note that the credibility of the sixteen year
old girl who made the accusations against complainant was not at issue.
Rather, complainant's EEO complaint focused on whether the agency had a
legitimate, non-discriminatory reason for issuing complainant a seven day
suspension. Specifically, at issue was whether complainant's supervisor
and manager had a reasonable basis for believing the accusations by the
sixteen year old girl were true. Moreover, we note that in the present
case, the AJ clearly provided the parties with advance notice of her
intention to hold the hearing by video conference and nether party
objected to this method. Upon review, we find that the AJ did not
abuse her discretion by electing to hold a video conference hearing.
See Allen v. United States Postal Service, EEOC Appeal No. 01A51259
(August 21, 2006).
On appeal, complainant contends that an identified individual was also
previously accused of sexual harassment but had not been disciplined as
a result. The agency maintains that that individual was not similarly
situated since none of complainant's supervisors/managers was involved in
the incident when the individual was accused of harassment. Complainant
also contends that the manager improperly considered complainant's
previous discipline, which was subsequently removed via a grievance
settlement, in issuing the instant suspension. The manager admitted
that the previous discipline was in fact expunged. He stated that he
concurred in the decision to issue complainant the suspension at issue
based on his investigation into the alleged sexual harassment incident
at issue and the agency's policy on sexual harassment. The manager and
complainant's supervisor denied the issuance of the suspension was based
on any discrimination.
The AJ stated and we agree that complainant failed to show by a
preponderance of the evidence that the agency's proffered reasons were
pretextual. Upon review, we find that the AJ's factual findings of
no discriminatory intent are supported by substantial evidence in the
record. Accordingly, the agency's final action is AFFIRMED.
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
10/22/09
__________________
Date
2
0120082109
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013