01-2007-2060_Adams
08-29-2008
Michael C. Adams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Michael C. Adams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 0120072060
Agency No. 4H390010905
Hearing No. 420-2006-00061X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 22, 2007 final order 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. Complainant
alleged that the agency discriminated against him on the bases of
race (African-American) and color (Black) when: (1) he was denied
"developmental opportunities" (or details) from February 2005 to September
2005; and (2) he was denied information on April 1, 2005 and April 21,
2005 regarding the Southeast Area policy dealing with detailing employees
outside of the Area.
The AJ noted the following findings of fact: Complainant was employed
by the agency as a Retail Specialist, EAS Level 16, in the agency's
Mississippi District Office in Jackson, Mississippi. During the relevant
time period, complainant's first-line supervisor (S1) (African-American)
was the Manager of Retail, Marketing Department. Complainant's
second-line supervisor (S2) (African-American) was the Manager of
Marketing Department, Jackson District. Complainant became a Retail
Specialist in 1999. In October, 2005, he was promoted to the position
of Operations Specialist, EAS Level 23 in the agency's headquarters in
Washington D.C. Complainant claims that he was denied eight different
detail opportunities between March 2005 and August 2005.
Following a hearing, the AJ concluded that complainant failed to present
evidence to support his claims. The record shows that complainant
was granted a one-year detail to the position of Retail Specialist in
Washington D.C. which was extended for another year and lasted until
the end of December 2004. At complainant's request, the agency's
District Office requested that the detail be extended for another year.
That request was denied by the agency's Southeast Area Vice President.
On December 6, 2004 complainant was advised that an agency policy was
in place that required the approval of the agency's Southeast Area Vice
President of a detail of any employee in the Southeast Area to a position
outside the Southeast Area. After returning to the Jackson, Mississippi
District Office in January 2005 complainant took both annual and sick
leave until February, 2005. During the time period that complainant
was in Washington D.C. on detail, several people filled his position
and assumed his duties in Jackson, Mississippi. In October 2004,
the Skills Bank was introduced by the agency's Mississippi District
Diversity Department. Employees interested in the Skills Bank were
required to complete an application and provide a pass code to their
supervisor to review and evaluate the application. Complainant did
not receive the detail opportunity because at the time the detail was
granted, complainant's Skills Bank application had not been completed.
Complainant's Skills Bank application was not completed until May 2,
2005.
In March 2005, complainant's request to detail into a position in
the agency's Headquarters Office was denied. Management officials
deny that complainant's race or color was a factor in the denial of
any developmental opportunity, but that the agency wanted complainant
to perform the Retail Specialist position duties for the Mississippi
District for a time period because he had been on detail outside the
Southeast Area for almost two years. S1 approved numerous developmental
opportunities for complainant prior to that time.
Complainant claims that he was denied information on April 1, 2005 and
April 21, 2005. According to the AJ, the evidence establishes that on
December 6, 2004, complainant was informed of the policy regarding the
requirement of the Area Vice President's approval for any out of the
area details. The evidence in the record also indicates that although
complainant did not receive a written copy of the policy, he was given
the details of the policy each and every time he asked S1 or S2 about
the policy.
The AJ noted that complainant did not presented a scintilla of evidence
showing that during the relevant time period, anyone in the Southeast Area
was allowed to detail outside the area without the Area Vice President's
approval. In addition, complainant failed to present evidence that
similarly situated employees outside of his protected classes were
treated more favorably.
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).
Over complainant's objection, the AJ allowed eight (out of 15) witnesses
to testify telephonically at the hearing. The witnesses who testified
by phone lived more than ninety (90) miles from the hearing site.
In addition, many of telephonic witnesses had little or no relevant
knowledge of complainant's claim.1 The agency argues that it was not
essential for those witnesses to be physically present at the hearing
as their credibility has little or no bearing on the issues herein.
In Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May
17, 2006), the Commission promulgated its policy regarding the taking of
telephonic testimony in the future by setting forth explicit standards and
obligations on its Administrative Judges and the parties. Louthen requires
either a finding of exigent circumstances or a joint and voluntary
request by the parties with their informed consent. Further, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless.
See Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440 (May
17, 2006). Upon review of the record, we conclude that assuming the AJ
erred in allowing telephonic testimony, such error was harmless.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
August 29, 2008
__________________
Date
1 The testimony of each witness generally lasted less than five minutes.
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0120072060
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036