01a00131
02-10-2000
Charles E. Cole, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.
Charles E. Cole, )
Complainant, )
) Appeal No. 01A00131
v. ) Agency Nos. 1H-391-1006-95
) 1H-391-1035-96
William J. Henderson, ) 1H-391-0010-97
Postmaster General, ) 1H-391-0015-97
United States Postal Service ) Hearing Nos. 130-98-8364X
(S.E./S.W. Areas), ) 130-98-8365X
Agency. ) 130-98-8366X
)
130-98-8367X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), sex (male), and
reprisal (prior EEO activity), in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant
alleges he was discriminated against when: (1) on September 27, 1994,
he was issued a Letter of Warning for not following instructions;
(2) on June 20, 1996, he received a notice of a seven day suspension;
(3) on December 16, 1996, he was not allowed to return to work and was
placed in a non-duty status; (4) on March 31, 1997, he was removed from
the postal service. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Mailhandler, at the agency's Jackson, Mississippi facility.
The record reveals that complainant's supervisor issued the discipline
as referenced above.<2> Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently filed formal
complaints on November 17, 1994, August 5, 1996, May 2, 1997, and June
18, 1997.
Following a hearing, at which eleven witnesses testified, the AJ issued a
recommended decision finding no discrimination. As to complainant's first
two complaints, the AJ found that complainant failed to establish a prima
facie case on any bases in that he failed to identify similarly situated
individuals, not in his protected classes, who were not disciplined
for committing similar offenses. Although complainant contended
that comparatives (white) were not disciplined, the AJ found that the
supervisor was not aware of the individuals cited by complainant.
As to complainant's final two complaints, the AJ found that complainant
only established a prima facie case of reprisal in that the supervisor
was aware of complainant's prior EEO activity, and issued the discipline
within close enough proximity to the EEO activity such that a causal
connection was established. Although complainant contended that the
co-worker who was involved in the altercation with complainant was
retained while he was not, the AJ found complainant failed to establish
a prima facie case of race discrimination since the comparative he cited
was within his protected groups. The AJ also noted that the co-worker
(Black male, prior EEO activity) was recommended for discharge, but was
ultimately retained through a union settlement.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for removing complainant from pay status
and ultimately issuing a removal notice. Specifically, the AJ found
complainant was issued the emergency placement into a non duty status,
and ultimately removed from employment when he was involved in a physical
altercation with a co-worker at a gas station. The supervisor noted that
complainant had been warned in the past for making threats of violence
towards this co-worker.
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 or retaliation. In reaching this conclusion, the AJ
found that although a white female was retained following her notice
of removal, the two were not similarly situated since the comparative
was not involved in a physical altercation, and was retained by a union
settlement and not through the actions of the supervisor. The AJ also
noted that the agency's witnesses' demeanor at the hearing revealed no
discriminatory animus, nor did complainant present any direct evidence
of discrimination.
On September 1, 1999, the agency issued a final decision adopting the
AJ's recommended decision. This appeal followed.
On appeal, complainant restates arguments previously made at the hearing.
He also disputes that the physical altercation occurred as alleged.
The agency responds by restating the position it took in its FAD, and
requests that we affirm its final decision.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist 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
recommended decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present sufficient evidence 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 or sex. We discern
no basis to disturb the AJ's recommended decision. 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 decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 10, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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 Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Complainant's temporary supervisor initiated the suspension referenced
in complainant's second complaint. As he did not have authority to
�sign off� on the suspension, it was ultimately issued by complainant's
regular supervisor.