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.