0120082234
08-28-2009
Shelby Dawson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shelby Dawson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082234
Hearing No. 490-2007-00100X
Agency No. 1H-374-0015-00
DECISION
On April 9, 2008, complainant filed an appeal from the agency's March
20, 2008 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the record contains substantial evidence to support the
EEOC Administrative Judge's determination that complainant was not
discriminated against on the basis of his religion (Jehovah's Witness)
when, on or around December 5, 1999, he was denied a change of schedule.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Mail Handler at the Memphis Bulk Mail Post Office. In the fall of 1999,
his off days were Thursday and Friday. Complainant approached A-1, the
Plant Manager of the Bulk Mail Center, on October 4, 1999, and inquired
about obtaining a change of schedule so that he could start attending
church on Sundays. A-1 told complainant to put his request in writing.
Complainant did so the next day. On December 5, 1999, complainant's
request was denied. According to complainant, he learned that day that
A-1 had granted schedule changes for other employees.
Complainant sought EEO counseling on December 9, and filed a
formal complaint on March 13, 2000. After complainant requested an
administrative hearing, the parties entered into a settlement agreement
on February 5, 2002. Complainant agreed to withdraw his EEO complaint
and the agency agreed that:
The complainant will receive first priority for change of schedules on
Tour 2 at the Memphis BMC Annex, when management determines employees can
be non-scheduled on Sundays. This does not include employee scheduled
vacations which are signed for per the collective bargaining agreement,
or those employees on sick leave.
Subsequently, complainant alleged that the agency violated the agreement
and, on August 23, 2006, the Office of Federal Operations (OFO) issued
a decision that found that a violation had occurred.1 OFO directed the
agency to begin processing the matter from the point that processing
ceased in 2002.
The parties stipulated that C-1(Mail Handler) was granted Sundays off on
six different occasions between April and December 1999. Sunday was her
scheduled off day for three of the six occasions in April, May and July.
From October 30 to November 5, 1999, she was allowed to change her off
days from Friday and Saturday to Thursday and Sunday, but A-1 was not
the supervisor who authorized the change. A-1 did approve two Sundays
off for C-1 when she would not have otherwise had the days off - December
5 and 26, 1999. Complainant also maintained that C-2, C-3 and C-4 were
given schedule changes that included Sundays off, but he was unable to
provide specific dates with respect to these employees. The record also
indicated that complainant formally requested, via Form 3189, that his
schedule be changed four straight weekends on two separate occasions.
These periods were August 6, 2000 - September 6, 2000 and August 13,
2000 - September 13, 2000. The record indicates that both of these
requests were denied.
An EEOC Administrative Judge (AJ) held a hearing in February 2008 and
issued a bench decision finding no discrimination at the conclusion
of the hearing. The AJ held that "[n]o credible evidence was presented
at the hearing that [complainant] was treated any differently than any
other mail handler who requested a change in schedule to have a Sunday
off during the period from October 1999 through February 5, 2002."2
Specifically, the AJ found that there was no evidence that agency ever
approved any mail handler's requests to have four Sundays off at one time.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, complainant argued that: (1) there was clear and convincing
evidence that he was treated differently than similarly situated
employees;3 (2) the AJ erred in finding that he was not a credible
witness; and (3) OFO erred in August 2006 when it did not order the
agency to comply with the settlement agreement. The agency argued that
the AJ's decision should not be disturbed because there is substantial
evidence in the record to support his findings and conclusions.
ANALYSIS AND FINDINGS
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.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming complainant established a prima facie case of discrimination
based on religion, the agency has set out a legitimate, nondiscriminatory
explanation for its actions, i.e., employees were not given Sunday off
as a schedule change unless they put in a specific request based on that
particular day. Like the AJ, we find no persuasive evidence of pretext.
With respect to complainant's first contention raised on appeal, we find
substantial evidence in the record to support the AJ's determination
that complainant failed to establish by a preponderance of the evidence
that he was discriminated against. Although there is evidence that,
from time to time, employees, such as C-1 and others, were allowed to
change their schedules, complainant sought a long-term or permanent
change of schedule so that he would have Sunday as an off-day. We note
in this regard complainant's request, on two occasions in August 2000,
to have off four straight Sundays. Although complainant maintained
that there were witnesses and documentary evidence that supported his
claim that other employees were granted long-term changes of schedule,
the AJ found this evidence unpersuasive.4 We agree.
With respect to complainant's second contention, we note that an
Administrative Judge's credibility determinations are entitled to
deference due to the judge's first-hand knowledge through personal
observation of the demeanor and conduct of the witness at the hearing.
Grant v. Department of the Treasury, EEOC Appeal No. 01985972 (August 2,
2001). In the present case, the AJ's determination that complainant was
not a credible witness was based primarily on the fact that complainant
revealed, for the first time on the day of the hearing, that he had
submitted a Form 3189 in December 1999 requesting a schedule change.
Because he had never made this assertion before, the AJ found that he was
not credible. Since the AJ's credibility determination was based on the
substance of complainant's testimony, and not complainant's demeanor and
conduct while testifying, we find that the AJ's credibility determination
should not be given deference. Notwithstanding the determination above,
we still find substantial evidence to support the AJ's finding of no
discrimination.
Finally, with respect to complainant's third contention, we note that if
complainant felt that the decision issued in August 2006 was in error,
he could have requested that the Commission reconsider said decision.
A review of the Commission's records indicate that he did not file a
reconsideration request for EEOC Appeal No. 01A62876; therefore, we do
not find that it is appropriate to now address whether the decision was
properly decided.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order.
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
______08/28/09____________
Date
1 Dawson v. USPS, EEOC Appeal No. 01A62876.
2 Complainant maintained that A-2, Manager, Bulk Mail Center, told him
that A-1 stated that "what [complainant] wanted wasn't as important as
the rest." We note, however, that A-2 stated that she did not recall
making that statement. Affidavit C, page 2, dated May 31, 2007.
3 The AJ noted in his decision and there is no dispute that this is a
disparate treatment case, not a religious accommodation case.
4 The AJ noted that:
[n]one of [complainant's] witnesses testified that they had submitted
a Form 3189 requesting a Sunday off and all based their testimony on
hearsay and even then were unable to identify a specific date when one
of the mail handlers they identified had actually filed a Form 3189 and
none knew whether the Form 3189 form the complainant was requesting was
for one Sunday off or like [complainant's] August forms were requesting
four Sundays off per each request.
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0120082234
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082234