Charles E. Cole, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01a00131 (E.E.O.C. Feb. 10, 2000)

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.