01994572
11-09-1999
Robert F. Meyers, Complainant, v. Alberto Aleman Zubieta, Administrator, Panama Canal Commission, Agency.
Robert F. Meyers, )
Complainant, )
) Appeal No. 01994572
v. ) Agency No. 354
) Hearing No. 150-98-8741X
Alberto Aleman Zubieta, )
Administrator, )
Panama Canal Commission, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision (FAD) concerning his complaint of unlawful employment
discrimination, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted
in accordance with EEOC Order No. 960.001. For the reasons that follow,
the Commission affirms the agency's FAD.
The record reveals that complainant, a Senior Control House Operator
at the Panama Canal, filed a formal EEO complaint on September 2, 1996,
claiming that the agency retaliated against him based on his prior EEO
activity when it denied his request for compensation for the theft of
his two toy poodles which were stolen from the yard of his personal
residence in May 1996<2>. The agency initially issued a FAD dismissing
this complaint for failure to state a claim. On appeal, the Commission
determinated that complainant stated a claim because he contended that
his request for reimbursement for the theft of his dogs was treated
differently (i.e. the reimbursement criteria was disparately applied)
as reprisal for his prior EEO activity, and so fell within the purview
of the EEO process. See Meyers v. Panama Canal Commission, EEOC Appeal
No. 01976106 (May 20, 1998).
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 (RD) finding no discrimination. The agency's FAD
adopted this determination, and complainant now appeals.
The AJ concluded that although it was unlikely that complainant
demonstrated the required nexus between his prior EEO activity and
his current complaint, given the five year period of time separating
these events, complainant nevertheless established a prima facie case of
reprisal based on the Title VII type issues he raised with his supervisor
during this intervening five year period. The AJ then concluded that the
agency articulated a legitimate, nondiscriminatory reason for its denial,
namely, that complainant was not entitled to reimbursement under the
Act because he engaged in contributory negligence when the dogs were
stolen when left unattended. The AJ further found that complainant
was unable to show that this reason was not credible, notwithstanding a
heated dispute about the length of time the dogs were left unattended.
The AJ additionally found that the complainant failed to produce any
evidence to show that the responsible agency officials were motivated
by reprisal based on his �big win� in his prior EEO complaint, and that
this contention was no more than mere speculation.
On appeal, complainant contends that the AJ erred when he misstated
complainant's occupation and failed to allow complainant to present
unfettered �background� evidence regarding up to eight years of claimed
reprisal. Complainant also argues that the AJ erred when he failed to
find that all of the involved decision makers had knowledge of the prior
EEO matter, and asserts that their retaliatory motive is proved by the
fact that they chose to rely on the police report stating that the dogs
were unattended for 60 minutes as opposed to complainant's report that
they were unattended for only 10 minutes.
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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The Commission finds that the AJ's RD summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that the agency's decision
was in retaliation for complainant's prior EEO activity. Given this
lack of evidence, we are not persuaded by the argument on appeal that
knowledge of the prior EEO complaint, coupled with a decision to rely on
the police report, is tantamount to a retaliatory motive. Moreover, the
AJ's misstatement of complainant's occupation is a minor and harmless
error, and the record reveals that the AJ permitted the appropriate
amount of �background� evidence to be presented, and, in fact, used
this evidence to allow complainant to establish a prima facie case
where arguably none exists. See Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976). Additionally, we note that an AJ
has broad discretion in the conduct of a hearing. Malley v. Department
of the Navy, EEOC Appeal No. 01951503 (May 22, 1997). Furthermore, we
discern no basis to disturb the AJ's decision, which is based on sound
conclusions supported by substantial evidence, and reflects a just result.
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 FAD.
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:
December 17 1999
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.
2 Complainant filed this request under the Military Personnel and Civilian
Employees Claims Act (Act).