01A44581_r
12-21-2004
Anthony Kapp, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony Kapp v. United States Postal Service
01A44581
December 21, 2004
.
Anthony Kapp,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44581
Agency No. 4F-900-1202-95 and 4F-900-0161-98
Hearing No. 340-1998-03380X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a part-time flexible Letter Carrier
at the agency's Crenshaw Station, Los Angeles, California facility,
filed two formal EEO complaints, one on September 28, 1995; the other
complaint on July 28, 1998. In his complaints, complainant alleges that
he was subjected to retaliation for prior EEO activity (formal complaints
filed under Title VII and Rehabilitation Act) and discriminated against:
on the bases of disability (depression, unspecified) and race (Black)
when the uniform allowance for his carrier position was terminated from
July 1994 through August 1996, and his first-line supervisor (S1) did
not help him rectify the situation;
on the bases of disability, race and sex (male) when he was denied
overtime from April 25, 1995 through July 15, 1995, by S1 because he
was not allowed to work on off-days in his carrier position;
on the basis of disability when he was directed to deliver two large
parcels for another carrier on July 15, 1995;
when he was issued a notice of suspension for seven calendar days on
September 22, 1995; and
when, between April 9 and April 25, 1998, he was assigned to drive a
postal vehicle containing a hazardous chemical.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Previously, the AJ issued a decision by summary judgment.
The Commission determined in Anthony Kapp v. United States Postal Service,
EEOC Appeal No. 01A11435 (October 18, 2001), that summary judgment was
inappropriate and directed the agency to submit the matter for a hearing.
Following a hearing on March 15, 2004, the AJ issued a bench decision,
dated March 31, 2004, finding no discrimination.
The AJ concluded that complainant failed to established a prima facie
case of disability, race, or sex discrimination with any claims in
his complaint. The AJ found that complainant did not establish that
he was a qualified individual with a disability, nor that non-Black
employees received preferential treatment when compared to complainant.
Specifically, the AJ found that complainant failed to demonstrate that
similarly situated employees not in complainant's protected classes were
treated differently under similar circumstances.
Regarding claim (1), the AJ found that a preponderance of the evidence
showed that as soon as complainant's supervisor was alerted to the fact
that complainant's uniform allowance had been terminated, the supervisor
made the inquiries necessary in order for complainant to be paid the
allowance he was due. The AJ found that complainant was unable to show
that the supervisor assisted any other employee, not in complainant's
protected classes, more aggressively when their uniform allowances were,
likewise, terminated.
Regarding claim (2), the AJ found complainant established a prima facie
case of sex discrimination, but the AJ found the evidence presented did
not show that the agency's given reasons for assigning overtime to the
identified employee was a pretext for discrimination. Rather, the AJ
found the evidence showed that the work was needed and she was available.
The AJ found that complainant failed to prove any causal connection
between complainant's prior protected activity and the incidents described
in claims (3), (4), and (5). Additionally, the AJ found complainant
failed to show that the agency's articulated reasons for directing
complainant to deliver two large parcels or for issuing complainant
a Notice of Suspension for 7 days, was a pretext to mask unlawful
discrimination. The suspension was issued because of complainant's
failure to report for work. Complainant failed to report to work after
he was issued a Letter of Warning for Unsatisfactory Attendance and
Excessive Absenteeism. Further, the AJ found believable the testimony of
complainant's supervisor regarding the cleaning of the vehicle reported
by complainant to have had a chemical spilled in it.
The AJ concluded that complainant failed to show, by a preponderance
of the evidence, that discrimination occurred as alleged in any claim.
The agency's final order implemented the AJ's decision.
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.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and 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 persuasive evidence to show
that any of the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by discriminatory animus toward
complainant's race, color, age, or disability.<1> We discern no basis
to disturb the AJ's decision.
Therefore, we AFFIRM the agency's final order finding no discrimination.
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 (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
December 21, 2004
__________________
Date
1We do not address in this decision whether
complainant is a qualified individual with a disability. We simply
assume that even if complainant was disabled, none of the actions taken
by the agency at issue in the complaint were motivated by complainant's
purported disability.