0120091796
09-14-2009
Haynes C. Kinslow, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Haynes C. Kinslow,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091796
Hearing No. 530200700309X
Agency No. 1A086001104
DECISION
On March 17, 2009, complainant filed an appeal from the agency's February
27, 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
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler at the agency's Processing and Distribution center
in Trenton, New Jersey. On July 2, 2004, complainant contacted the EEO
Counselor alleging discrimination on the bases of race (African-American),
national origin (Spanish), and color (Black) when, on May 7, 2004,
he received a Notice of Removal while out of work on sick leave.
The matter was resolved by settlement agreement on August 23, 2004.
On January 27, 2005, complainant alleged that the agency breached the
settlement agreement when he was removed from his Mail Handler position.
The agency found no breach the settlement agreement. Complainant filed
an appeal with the EEOC. In Kinslow v. U.S. Postal Serv., EEOC Appeal
No. 0120053586 (November 6, 2006), the Commission voided the settlement
agreement finding lack of consideration. As a result, the Commission
remanded the complaint for further processing.
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 January 9, 2009 and
issued a decision on February 17, 2009. 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.
The AJ found that complainant failed to establish a prima facie case of
discrimination. Assuming arguendo that complainant established a prima
facie case, the AJ determined that the agency articulated legitimate,
nondiscriminatory reason for the removal action. The AJ found that the
agency proved that complainant had been issued progressive discipline for
his attendance problems. In the end, the AJ determined that the agency
issued the Notice of Removal based on complainant's absences off and on
in 2003 and almost throughout 2004 and the shortage in operation caused
by complainant's absence. Moreover, the AJ concluded that complainant
failed to prove, by a preponderance of the evidence, that the agency's
reasons were pretext for discrimination.
The agency issued its final order adopting the AJ's decision and the
instant appeal followed.
ANALYSIS AND FINDINGS
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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Upon review of the record and the AJ's findings, the Commission
determines that the AJ properly held that the agency articulated
legitimate, nondiscriminatory reasons for the removal action. Further,
the Commission finds that complainant has not shown that the agency's
reasons were pretext for discrimination. Accordingly, we conclude
that the AJ correctly determined that complainant failed to show that
the removal action constituted discrimination on the bases of race,
national origin and/or color.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order adopting the findings of the AJ's decision.
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 14, 2009
__________________
Date
2
0120091796
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091796