Darrell Holland, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionDec 12, 2000
01996776 (E.E.O.C. Dec. 12, 2000)

01996776

12-12-2000

Darrell Holland, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Darrell Holland v. United States Postal Service

01996776

December 12, 2000

.

Darrell Holland,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 01996776

Agency No. 4G-752-0156-97

Hearing No. 310-98-5370X

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleges he was discriminated against on the bases of race

(Black) and color (black) when he was given a seven (7) day suspension

for having an accident with his postal vehicle while three (3) white

employees were given lesser discipline for having similar accidents.

For the following reasons, the Commission AFFIRMS the FAD.

The record reveals that complainant, a City Carrier in the agency's

Dallas, Texas, District facility, was involved in an accident with

his postal vehicle in which he struck the rear of a stopped, occupied

private vehicle on December 24, 1996. The record establishes that a

facility investigation determined that complainant was negligent in the

operation of the vehicle, and the facility's Manager of Customer Service

(MCS) issued complainant the seven (7) day suspension at issue for the

accident.<2> Believing he was a victim of discrimination for receiving

the suspension, complainant filed a formal complaint on March 8, 1997.

At the conclusion of the agency's investigation, complainant received a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The AJ found that complainant failed to establish a prima facie case

of race or color discrimination, as she found there were no similarly

situated employees not in complainant's protected groups that were

treated differently under like circumstances. In so finding, the AJ

found that a comparison employee not of complainant's protected classes

(C1) cited by the agency was also issued a seven day suspension for a

negligent vehicle accident which occurred prior to complainant's accident.

The AJ further found that while the three (3) comparison employees cited

by complainant were involved in vehicle accidents and not issued seven day

suspensions, these employees were not similarly situated to complainant.

In so finding, the AJ disputed the MCS's statement that the comparison

employees accidents occurred two years prior to complainant's accident,

but nevertheless found that the accidents of the comparison employees

were not sufficiently similar in that they did not involve hitting

a stopped and occupied private vehicle from the rear. As a result,

the AJ found that complainant's accident was more serious and, thus,

complainant failed to show that he was similarly situated to the three

white comparison employees. The agency's FAD adopted the findings of

the AJ. On appeal, complainant contends that he was prejudiced by not

having a hearing and that C1 was involved in a more serious accident

than he was. The agency has not responded to complainant's appeal.

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).

After a careful review of the record, the Commission finds that

complainant failed to establish a prima facie case of discrimination based

on race or color. In so finding, we agree with the AJ's finding that C1,

who is outside complainant's protected groups, was also issued a seven (7)

day suspension for a negligent vehicle accident two (2) weeks prior to

complainant's accident. See Investigative Report at III. In addition,

two (2) of the three (3) comparison employees cited by complainant were

not given suspensions for their vehicle accidents as they were not

determined to be negligent by the agency. Id. The Commission notes

that the third comparison employee cited by complainant was given a

letter of warning for a negligent vehicle accident. However, we find

the record establishes that this employee was not similarly situated

to complainant as that accident occurred in April of 1995, almost two

years prior to the time of complainant's accident, it was less serious

than was complainant's accident as it did not involve hitting an occupied

private vehicle from the rear and further occurred prior to the agency's

revised policy on vehicle accident prevention which was implemented in

November of 1995. Exhibits 7, 10. Finally, the Commission agrees with

the AJ's finding that a hearing in the instant case was not necessary as

no genuine issues of material fact existed. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).

Therefore, after a careful review of the record, including complainant's

contentions on appeal and arguments and evidence not specifically

addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 12, 2000

__________________

Date

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 A review of the record establishes that the suspension was later

removed from complainant's records and he was paid for the time served

during the suspension.