Charles A. Harrison v. United States Postal Service
01982299
9/20/01
.

Charles A. Harrison,
Complainant,

v.

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 01982299

Agency Nos. 4-G-760-1269-95
                   4-G-760-1334-96

Hearing Nos. 310-96-5434X
                   310-97-5440X

DECISION

Charles A. Harrison (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (white), sex (male), physical
disability (rotator cuff injury), age (DOB: 2/27/42) and reprisal for
prior EEO activity in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C.  2000e et seq., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.  621 et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C.  791, et seq.
The appeal is accepted in accordance with 29 C.F.R. 1614.405.  For the
following reasons, the agency's decision is Modified.

ISSUE PRESENTED

The issue on appeal is whether complainant was subject to discrimination
on the aforementioned bases when:

 the Postmaster purportedly threatened him with bodily harm on August
 4, 1995;

 he was not allowed to use the phone to contact his attorney concerning
 his EEO complaint on May 6, 1996;

 on August 22, 1996, he was placed on administrative leave and issued
 a notice of removal which became effective on September 20, 1996.

BACKGROUND

The record reveals that complainant, was previously employed as a
Rural Carrier, PS-05, at the agency's Granbury, Texas Post Office.
(HT p. 16). <1>  In a consolidated formal complaint, complainant alleged
that he was denied official time for the EEO process and he was told that
his route was being cut because of his shoulder injury.<2>  Further,
complainant averred that on August 4, 1995, he found a letter from
the Postmaster (hereinafter PM) to one of the customers on his route.
Complainant asserts that he suspected that the PM was soliciting
complaints from his customers, thus, he made a copy of the front of the
letter.  Complainant states that the PM found him copying the letter and
told him that he was breaking a federal law.  Complainant also states
that the PM threatened him with bodily harm because of this apparent
infraction.

According to complainant, he had a good relationship with the PM until
the day that he got injured on the job.  (HT p. 36.)  On April 29, 1996,
complainant states that he was told that he could not call his attorney
for an EEO complaint on company time.  (HT pp. 49-51).  Earlier in 1995,
complainant averred that the Supervisor of Customer Service (hereinafter
SCS) told him that he could not use administrative time to deal with an
EEO matter.  Additionally, complainant states that both the PM and the
204-B told him that he could not use the agency's phone for EEO activity.
(HT p. 76).  Further, complainant testified that the PM denied him
official time to meet with an EEO Counselor and told him that he had to
use his annual leave.  (HT p. 78).

In a bench decision issued on October 8, 1997, an Administrative Judge
(AJ) of the EEOC found that complainant failed to establish a prima
facie case of discrimination on all of his identified bases except for
reprisal.  (RD p. 10-11).  The AJ also found that complainant failed to
show pretext with respect to the issues of the (1) alleged threat, (2)
the agency's alleged failure to allow complainant to use the telephone
and (3) the notice of removal (hereafter referred to as allegations #1,
#2, #3) (RD pp. 14 &15).  In this regard, the AJ noted that she did
not find complainant to be a credible witness.  (RD p. 13).  However,
with respect to the official time issue, the AJ found that the agency
acted in a discriminatory manner when it did not allow complainant a
reasonable amount of official time to confer with an EEO representative.
(RD p. 14.)  By making blanket denials of complainant's requests for
administrative leave, the AJ found that the agency was in express
violation of the applicable EEOC regulations.  Id.

In a FAD dated January 15, 1998, (hereinafter FAD #2),  the agency
concurred with the AJ's finding that complainant was not subjected to
discriminatory treatment with respect to allegations #1, # 2, and #3
above.  (FAD #2 p. 2).  However, with respect to the official time issue,
the agency disagreed with the AJ and rejected her finding of retaliatory
treatment.  Specifically, the agency found that complainant failed to
prove by a preponderance of the evidence that the agency's actions with
respect to this issue was due to discriminatory motive.  (FAD #2 P. 4).
The agency also noted that the issue dealing with official time was not
one of the issues the AJ identified for adjudication.  Thus, the agency
contends that it was blind-sided by the AJ's finding on this matter.

CONTENTIONS ON APPEAL

On appeal, complainant reiterated a number of the arguments he made at the
hearing and investigatory stage of the complaint process.  Specifically,
complainant argues through his attorney, that both the EEO investigation
and Postal Inspectors' investigation, of the alleged threat by the PM,
were biased in favor of the agency.  Complainant also argues that once he
became injured, he became expendable and he was programmed for failure.
Consequently, complainant argues that he became a target of a wide range
of retaliatory actions which were orchestrated by the PM and the Manager
of Post Office Operations, (hereinafter MPO) along with the aid of the
Postal Inspectors.

ANALYSIS AND FINDINGS

As a preliminary matter, we take cognizance of the agency's argument that
the issue dealing with official time was not one of the issues articulated
by the AJ for adjudication in her bench decision.  The Commission finds
that despite this omission on the AJ's part, this issue is a valid one
which needs to be adjudicated in the context of the current decision.
This action is taken in the interest of administrative economy and is
consistent with the revised EEOC regulations which allows the Commission
to consolidate two or more complaints of discrimination filed by the
same complainant.  See 29 C.F.R. 1614.606. <3>

Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions.  See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether he has demonstrated by
a  preponderance of the evidence that the agency's reasons for its
actions merely were a pretext for discrimination.  Id.; see also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983).  In this case, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for its action.
Specifically, the PM testified with respect to allegations #1 that he
did not threaten complainant with bodily harm.  Instead, the PM asserted
that once he realized that complainant was copying the mail, he reminded
him that he was breaking a postal rule.  (HT pp. 133-4).  Moreover,
the PM testified that he told complainant that he should consider their
talk an official discussion and he told him to stop playing games and
just carry his route.  Id.  In order to clear his name of complainant's
accusation, the PM stated that he took a polygraph test and the test
determined that he was not being deceptive when he denied having made
any threats against complainant.  (HT p. 143).

With respect to allegation #2, the PM stated that on the day in question,
he had already approved eight hours annual leave for complainant to
meet with his attorney, thus, when complainant asked him to use the
office phone, he reminded complainant that he was on leave status and he
suggested that complainant make his call somewhere else.  (HT pp. 138 -9).
Prior to this incident, the PM testified that he allowed complainant
to use the phones to call his attorney.  Addressing allegation  #3, the
MPO (male, 50 years of age at time of hearing, disabled, race and prior
EEO activity unspecified) testified that he issued the removal notice
because the investigation of the Postal Inspection Service revealed
that complainant intimidated customers and co-workers who may have had
a difference of opinion with complainant.  The PMO also averred that in
making his removal decision, he also took into account complainant's
disciplinary record and the fact that he made false charges against
the PM.  (HT pp. 186-8).

Based on the discussion above, the Commission finds that the agency
articulated legitimate non-discriminatory reasons for the challenged
personnel actions.  Moreover, we uphold the AJ's finding that
complainant's effort to prove pretext were unsuccessful due, in large
part, to the inconsistencies and self serving nature of complainant's
testimony.  (RD p. 13.)  See Millard v. United States Postal Service, EEOC
Appeal No. 01991535 (May 31, 2001) (in an administrative hearing, where
the motivation and credibility of witnesses are critical, the credibility
findings of the hearing officer are entitled to great weight, unless there
is substantial evidence in the record to support a contrary assessment);
See also Universal Camera Corp. v. National Labor Relations Board, 340
U.S. 474 (1951); Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990).  Based on our review of the
record, we find that the credibility findings and the decision on the
merits of the AJ were correct, except as they relate to her findings on
official time and attorneys fees which we will discuss below.
In her recommended decision, the AJ found that the agency acted in a
discriminatory manner when it refused to grant complainant administrative
leave to confer with his EEO representative.  (RD p. 14).  The Commission
has consistently held, however, that a claim dealing with the denial
of official time is a violation of EEOC regulations and not a claim
of discrimination.  See, Edwards v. United States Postal Service, EEOC
Request No. 05950708 (October 31, 1996);  See also Zhang v. United States
Postal Service, EEOC Appeal No. 01970585 (May 22, 2000). Thus, the focus
in evaluating such a claim should be on whether or not complainant was
denied official time and not on the agency's motivation.  See, O'Donnell
v. United States Postal Service, EEOC Appeal No. 01A02094 (May 31, 2000).

Applying the holding in the aforementioned cases to the facts in this
case, the Commission finds that there is ample evidence to support
the AJ's ruling that the agency improperly denied official time to
complainant to meet with his EEO representative or to prepare for his
EEO related meetings.  (RD p. 14).  In her testimony, the SCS testified
that complainants are not allowed administrative leave to file an EEO
complaint or to meet with their EEO representative on an EEO matter.
(HT p. 105).  The PM averred that his Human Resources Office advised him
that administrative leave was not available for complainant to speak to
his attorney.  Consequently, the PM testified that on three occasions
complainant requested administrative leave to meet with his attorney
and on all three occasions such leave was denied.  (HT pp. 137-8).
Section 1614.605 of the regulations provide that a complainant is entitled
to a representative of their choice. This regulation also provides that
both the complainant and the representative are entitled to a reasonable
amount of official time to present the complaint and to respond to the
agency's request for information. See 29 C.F.R. 1614.605(b). <4>

As a final matter we also wish to take cognizance of the AJ's finding
that complainant is not entitled to attorney's fees because he did not
substantially prevail on the majority of the issues in this case.  (RD
pp. 16-7)  In past decisions, the Commission has held that a complainant
is a prevailing party where he or she succeeds on any significant issue
of the complaint and achieves some of the benefits sought therein.
See Brionez v. Department of Agriculture, EEOC Request No. 05960492
(October 14, 1999) see also  EEOC's Management Directive (MD)-110,
p. 11-1 November 9, 1999 (A prevailing party, within the meaning of
Section 706(k) of Title VII, 42 U.S.C.  2000e-5(k), is a complainant
who has succeeded on any significant issue that achieved some of the
benefit the complainant sought in filing the complaint).  See also
Texas State Teachers Ass'n v. Garland I.S.D., 489 U.S. 782 (1989).
In light of these rulings, as well as the Commission's policy to allow
complainant's attorney's fees when the agencies issue a final order that
does not implement the decision of the AJ and the Commission upholds the
AJ's ruling, we find that complainant is entitled to attorney's fee in
this case.  EEOC's MD-110, p. 11-3, November 9, 1999.

Based on the foregoing discussion, we find that the agency was in
violation of the governing EEOC regulations when it denied complainant
official time to meet with his EEO representative.  Accordingly, the
agency's finding of no discrimination on the bases of race, disability
and reprisal is modified.

CONCLUSION

Therefore, after a careful review of the record, we MODIFY the FAD
by our finding that the agency violated EEOC Regulations when it
denied complainant official time to meet with his EEO representative.
The agency's finding of no discrimination is modified and the final
agency decision is remanded to the agency for further processing in
accordance with this decision and the Order below.

ORDER

The agency is ordered to take the following remedial actions:

The agency shall pay complainant for four (4) hours of administrative
leave plus interest up to the date that it implement this order.
This payment is equivalent to the amount of time that the AJ estimated
that complainant would have needed to meet with his attorney to prepare
for the meeting with the EEO Counselor/Investigator.

The agency should cease and desist from its practice of blanket denial
of official time for preparation purposes such as complainants' need to
meet with their EEO representatives.

The agency shall provide training to all managers and supervisors at
the Granbury Post Office, as well as the Labor Relations staff in the
Human Resources Office, that services the Granbury Post Office, on the
proper administration of official time requests in an EEO context.

The agency should pay complainant's attorney for the time he spent in
preparing this appeal, as well as for a reasonable amount of time spent
by the attorney in representing complainant at the earlier stages of
the complaint process, as such representational  functions  relate to
failure to grant official time to complainant.


IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C.  20036.  The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant.  If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order.  29 C.F.R.  1614.503(a).  The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R.  1614.407, 1614.408, and 29 C.F.R.  1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action."  29 C.F.R.  1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999).  If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated.  See 29 C.F.R.  1614.409.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by
29 C.F.R.  1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R.  1614.501(e).  The award of attorney's fees shall be paid
by the agency.  The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final.  The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R.  1614.501.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (T0900)

This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint.  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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing.    In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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

9/20/01
__________________
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


______________________________
Equal Opportunity Assistant


1 Citations in this decision refer to the hearing transcript (HT),
recommended decision (RD) or final agency decision (FAD).

2 In his initial complaint dated October 25, 1995, complainant raised
the denial of official time for the EEO process and the cutting of his
route due to his shoulder injury as separate issues of discriminatory
treatment.  In a procedural FAD dated February 6, 1996, the agency ordered
complainant to seek EEO counseling with respect to the denial of official
time issue, and it dismissed the issue dealing with the reduction of
complainant's routed on the grounds that it was identical to an issue
raised by complainant in a complaint dated June 22, 1995.  FAD, p. 2.
On appeal the Commission affirmed the FAD.  See EEOC Appeal No. 01963048
(December 9, 1996).

3 The pertinent section of 29 C.F.R. 1614.606, states that
Administrative Judges or the Commission may, in their discretion,
consolidate two or more complaints of discrimination filed by the
complainant.

4 Further explaining the complainant's right to official time, the EEOC's
Management Directive (MD)-110 states [s]ince presentation of a complaint
involves preparation for meetings and hearings, as well as attendance
at such meetings, conferences, and hearings, complainants and their
representatives are also afforded a reasonable amount of official time,
as defined above, to prepare for meetings, and hearings.  They are also
to be afforded a reasonable amount of official time to prepare the formal
complaint and any appeals that may be filed with the Commission even
though no meeting or hearing are involved.   EEOC's MD-110, p. 6-16,
November 9, 1999.