0120092033
09-29-2009
Bobby Garnett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Bobby Garnett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120092033
Hearing No. 470-2008-00160X
Agency No. 1C-401-0012-08
DECISION
On April 14, 2009, complainant filed an appeal from the agency's March 31, 2009 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.
BACKGROUND
Complainant began working at the agency on March 29, 1997. At the time of events giving rise to this complaint, he worked as a Mail Processing Clerk at a Processing & Distribution Center in Louisville, Kentucky. Complainant worked on Tour One with an 11:00 p.m. - 7:30 a.m. shift. While at work on October 11, 2007, he initiated an altercation when he accused his coworker and friend (C/F) of stealing a small TV from a storage locker to which complainant had given C/F access. The altercation ultimately resulted in complainant head butting C/F, who, as a result, took sick leave and left the workplace. The entire incident was witnessed by complainant's first line supervisor. Complainant was placed in emergency off duty status (resulting in significant financial hardship) and subsequently given a pre-disciplinary interview.
On March 12, 2008, complainant filed an EEO complaint alleging that he was discriminated against on the bases of race (African American), color (Black) and in reprisal for prior protected EEO activity (arising under Title VII and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq.) when: (1) he was denied compensation for overtime between December 2007 and January 2008; and (2) issued a "No Time Off Letter of Warning" in lieu of a fourteen day suspension for the October 11, 2007 incident.
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, and the AJ held a hearing on December 12, 2008 and issued a decision on March 26, 2009.1 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. Neither party filed a brief in support of or in response to the instant appeal.
STANDARD OF REVIEW
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.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. 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).
The AJ found that complainant initiated the altercation at issue and head butted C/F. The AJ further found that the alleged denial of compensation and letter of warning were the direct consequences of that altercation. We conclude that these findings are supported by substantial evidence.
We concur with the AJ's finding that complainant failed to establish a prima facie case of discrimination on any of the alleged bases. Complainant argued that he was treated less favorably than C/F, and this is true. However, he was not similarly situated to C/F because C/F did not initiate the altercation nor did he engage in physical contact. Moreover, C/F is African American. Further, as the AJ noted, despite the fact that complainant had filed several EEO complaints naming his second level supervisor as the discriminating official, it was this same supervisor who acted as an advocate for complainant and undermined the Labor Relations Team's effort to keep complainant in "non pay" status indefinitely.2 We conclude that complainant did not introduce evidence that could support an inference of discrimination or retaliation.
Finally, we concur with the AJ's finding that complainant failed to rebut the agency's explanations for its actions with credible evidence. The AJ found that complainant admitted to a Postal Inspector that he head butted C/F. The AJ did not believe complainant's explanation that the head butt was an unintentional accident due to "uneven flooring." The AJ was not persuaded by any of complainant's arguments that the agency's actions in response to the October 11, 2007 incident were motivated by unlawful animus rather than mandated by agency labor relations policies. These factual findings are also supported by substantial evidence. We discern no reason to disturb the AJ's ultimate conclusion, that complainant failed to prove, by a preponderance of the evidence, that the agency's actions violated Title VII.
CONCLUSION
Based on a thorough review of the record and for the foregoing reasons, we AFFIRM the agency's 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
September 29, 2009
__________________
Date
1 The AJ noted that complainant attempted to raise claims during the hearing concerning the aforementioned emergency off duty status (and consequent leave without pay) and the pre-disciplinary interview. The AJ dismissed these claims on the grounds of untimely EEO Counselor contact, although it appears he considered them as background evidence in support of the accepted issues.
2 The record establishes that it was complainant's non pay status that affected his overtime compensation.
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0120092033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013