0120090346
02-11-2009
Alfonso R. Tapia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alfonso R. Tapia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090346
Hearing No. 480200700502X
Agency No. 1F914001007
DECISION
On October 24, 2008, complainant filed an appeal from the agency's
September 24, 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 accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission affirms the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Electronics Technician at the agency's Processing and Distribution
Center in Santa Clarita, California. On March 19, 2007, complainant
filed an EEO complaint alleging that he was discriminated against on
the basis of his national origin (Hispanic) when: (1) on November 25,
2006, management accused him of damaging equipment and placed him in
an emergency off-duty status; and (2) on December 21, 2006, management
issued him a Notice of 14-Day Suspension for Failure to Follow a Direct
Order/Insubordination and Failure to Report an Unsafe Work Condition.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case held a hearing on
July 22, 2008 and issued a decision on September 8, 2008, finding no
discrimination. The AJ concluded that assuming, arguendo, complainant
established a prima facie case of national origin discrimination, the
agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions that complainant failed to show were a pretext for
unlawful discrimination. 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. On appeal, complainant
reiterates his contention that he was subjected to unlawful national
origin discrimination, and alleges that the testimony of management
officials was not worthy of belief.
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, 134 (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).
Here, we concur with the AJ's finding that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the record reflects that, during the course of his duties on November
25, 2006, complainant knocked over a table and failed to notify anyone
about the incident. After the Supervisor, Distribution Operations
(S1) questioned complainant as to what had occurred, complainant failed
to follow several of S1's direct orders. The record shows that after
consulting with the Manager, Supervisor Operations and the Manager of
Labor Relations, S1 placed complainant in emergency off-duty status.
Further, the record shows that, following two separate investigative
interviews into the events of November 25, 2006, management issued
complainant a Notice of 14-Day Suspension for Failure to Follow a Direct
Order/Insubordination and Failure to Report an Unsafe Work Condition.
We find that complainant failed to proffer any evidence to show that
the agency's actions were motivated by discriminatory animus toward his
national origin, and we concur with the AJ's finding that complainant
failed to show that the agency's articulated reasons were pretextual.
The AJ's deicision is supported by substantial evidence.
Accordingly, we discern no basis to disturb the AJ's decision and the
agency's final order finding no discrimination is AFFIRMED.
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
February 11, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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