Traine D. Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.

Equal Employment Opportunity CommissionNov 15, 2000
01a05917 (E.E.O.C. Nov. 15, 2000)

01a05917

11-15-2000

Traine D. Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Mid-Atlantic Area), Agency.


Traine D. Smith v. United States Postal Service

01A05917

November 15, 2000

.

Traine D. Smith,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Mid-Atlantic Area),

Agency.

Appeal No. 01A05917

Agency No. 1C-191-0042-99

Hearing No. 170-A0-8172X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning her equal employment opportunity (EEO) complaint of unlawful

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.<1> The

appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges

she was discriminated against on the bases of race (Black), and sex

(female), when: (1) on December 3, 1998, she was required to perform all

the work associated with the loading and unloading of trucks at the dock

of the Airmail Section located in the Philadelphia Airmail Center and; (2)

on December 4, 1998, she was only given a fifteen minute break. For the

following reasons, the Commission AFFIRMS the agency's final order.

The record reveals that complainant, a Casual employee at the agency's

Philadelphia Airmail Center, Philadelphia, Pennsylvania facility,

filed a formal EEO complaint with the agency on February 19, 1999,

alleging that the agency had discriminated against her as referenced

above. 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

decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of race or sex discrimination when she was allegedly instructed to

load and unload all the trucks by herself. Specifically, the AJ found

complainant failed to present credible evidence that she was required to

perform all the work at the dock area on the day in question, and that the

male employees present were not required to assist her. In that regard,

the AJ found that complainant's witness was not credible in light of

prior problems, including an altercation, that existed between himself

and complainant's supervisor. The AJ found complainant failed to provide

any competent evidence that would prove that she was required to work

the docks alone. Although complainant alleged that the supervisor made

certain statements to complainant which were evidence of a discriminatory

notice, the AJ disagreed and found that the comments were taken out of

context and were not evidence of a discriminatory motive.

As for complainant's claim that she was denied a lunch break on December

3, 1998, the AJ found complainant failed to establish a prima facie

case on either bases. Specifically, the AJ found complainant failed

to establish that she was denied a lunch break on the day in question.

In that regard, the agency provided documentation that showed that

complainant clocked out for lunch at 1178 hours and returned at 1226

hours. The Supervisor of Distribution Operations testified that this

represents approximately 50 units which translates into roughly thirty

minutes. On December 4, 1998, complainant clocked out at 1177 hours

and returned at 1227 hours. The AJ found complainant failed to present

a scintilla of evidence to contradict the agency's documentation that

established complainant was not denied thirty minute lunch breaks on

the days in question.

The AJ found that complainant did not establish that more likely

than not, the agency's articulated reasons were a pretext to mask

unlawful discrimination. In reaching this conclusion, the AJ found

that complainant failed to present sufficient evidence that the events

in question occurred as she alleged in her complaint.

On August 18, 2000, the agency issued a final action that implemented

the AJ's decision. On appeal, complainant requests a new hearing so

that she may recall her witnesses. In response, the agency restates the

position it took in its FAD, and requests that we affirm its final order.

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).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present sufficient credible evidence that any of the agency's

actions were motivated by discriminatory animus toward complainant's race

and or sex. We discern no basis to disturb the AJ's decision, which was

largely based on the credibility of witnesses. 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 final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 15, 2000

__________________

Date

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

______________________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.