Robert J. Maietta, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Areas), Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
05990224 (E.E.O.C. Feb. 3, 2000)

05990224

02-03-2000

Robert J. Maietta, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Areas), Agency.


Robert J. Maietta v. United States Postal Service

05990224

February 3, 2000

Robert J. Maietta, )

Complainant, )

) Request No. 05990224

v. ) Appeal No. 01970142

) Agency Nos. 1A-106-1034-94;

William J. Henderson, ) 1A-106-1002-95

Postmaster General, ) Hearing Nos. 160-95-8500X;

United States Postal Service, ) 160-95-8707X

(N.E./N.Y. Metro Areas), )

Agency. )

____________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On December 11, 1998, Robert J. Maietta (complainant) initiated a request

to the Equal Employment Opportunity Commission (Commission) to reconsider

the decision in Robert J. Maietta v. United States Postal Service, EEOC

Appeal No. 01970142 (December 2, 1998).<1> EEOC Regulations provide

that the Commissioners may, in their discretion, reconsider any previous

Commission decision where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. �1614.405(b)). For the reasons

set forth herein, complainant's request is DENIED.

The prior decision affirmed the final agency decision (FAD), which

adopted the post-hearing recommended decision (RD) issued by the EEOC

Administrative Judge (AJ) finding no retaliation based on prior EEO

activity or discrimination based on race (Caucasian). In the underlying

consolidated complaints, complainant contends he was subjected to

retaliation and discrimination when: (1) complainant received notice

of a seven-day suspension from June 25, 1994, through July 2, 1994;

(2) in a step 1 grievance meeting on June 21, 1994, his supervisor

accused him of calling her names and of engaging in an outburst; (3) his

supervisor refused to allow his presence at a remanded Step 1 meeting

during which his supervisor accused him of being either a drug addict

or an alcoholic; and (4) on or about September 12, 1994, he was denied

Emergency Annual Leave.

In his request for reconsideration, complainant resubmits the

contentions he made on appeal, arguing that: (1) the AJ improperly denied

complainant's requests to obtain certain discovery and call certain

witnesses; (2) the AJ interfered with presentation of his case during the

hearing, and refused to recuse himself; (3) the AJ improperly concluded

that the individual who disciplined complainant had no knowledge of his

prior EEO activity, notwithstanding evidence which complainant contends

establishes that the discipline was issued at the direction of another

superior who did have knowledge of complainant's protected activity; (4)

the AJ's RD improperly combined several challenged incidents into one;

(5) the AJ's RD improperly concluded that complainant was not aggrieved

by certain supervisory actions; and (6) the AJ's RD misstated the

applicable law.

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 AJ's legal conclusions are reviewed de novo.

We note that the AJ appears to have applied the incorrect legal

standard for retaliation, by finding that at least one claim did not

involve any "adverse employment action" against complainant. RD at 17.

The Commission interprets the statutory retaliation clauses "to prohibit

any adverse treatment that is based on a retaliatory motive and is

reasonably likely to deter the charging party or others from engaging in

protected activity." EEOC Compliance Manual, Section 8 (Retaliation)

at 8-13 - 8-14 (May 20, 1998). We apply this standard in analyzing

complainant's claims.

However, applying the proper legal standard, we nonetheless conclude

that complainant has failed to satisfy his burden of proof to establish

that more likely than not, the challenged actions were motivated by

retaliation or race discrimination. The AJ's findings of fact challenged

by complainant are supported by substantial evidence in the record.

For example, complainant contends that the supervisor who issued his

suspension would not have disciplined him if not influenced or directed

to do so by the concurring official, who allegedly possessed retaliatory

intent. Complainant focuses on the fact that the concurring official

admittedly remarked "you're not going to let him get away with that"

after observing complainant's alleged misconduct at issue. However,

the supervisor testified that she made an independent determination to

discipline complainant, and described her first-hand account of the

misconduct which she determined warranted a suspension. See Hearing

Transcript (Trans.) at 398-402. Based on our review of the whole record,

including in particular the portions on which complainant relies, we

find that the AJ's finding of no discriminatory or retaliatory intent

was supported by substantial evidence as defined above, and thus will

not be disturbed.

Moreover, the transcript reveals that the AJ's rulings regarding witnesses

and conduct of the hearing challenged by complainant were within the

AJ's discretion to limit testimony on cumulative or irrelevant matters.

See, e.g., Trans. at 297-98, 540-81; cf. Bobrick v. Department of Health

and Human Services, EEOC Request No. 05930763 (May 12, 1994).

Accordingly, after a review of complainant's request for reconsideration,

the previous decision, and the entire record, the Commission finds

complainant's request does not meet the criteria of 29 C.F.R. �

1614.405(b), and it is the decision of the Commission to deny

complainant's request. Therefore, the decision of the Commission

in EEOC Appeal No. 01970142 remains the Commission's final decision.

There is no further right of administrative appeal from a decision of

the Commission on a request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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:

February 3, 2000

Date Frances M. Hart

Executive Officer

Executive Secretariat

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

1On 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.