0120073793
02-26-2009
Jason T. Leone, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Jason T. Leone,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120073793
Hearing No. 460-2007-00059X
Agency No. 1G-774-0005-06
DECISION
On August 29, 2007, complainant filed an appeal from the agency's August
20, 2007 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 data conversion operator at the agency's facility in Beaumont, TX.
Complainant was a non-career temporary employee with the agency and was
appointed to his position for a series of specific terms. Complainant's
final appointment with the agency began on April 19, 2006 and expired
on June 2, 2006. On or about June 2, 2006, complainant learned that
the agency would not renew his appointment beyond June 2, 2006.
On September 18, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of sex (male) when on June 2,
2006, the agency failed to renew his non-career appointment as a data
conversion operator.
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. The AJ held a hearing on July 17, 2007. In a
decision dated August 6, 2007, the AJ concluded that complainant failed
to demonstrate that he was subjected to discrimination because he did
not prove that the agency's articulated reasons for its actions were
pretext for discrimination. The agency subsequently issued a final
order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ improperly found no
discrimination because the acting supervisor who terminated him
was evasive and attempted to conceal material facts in his affidavit
responses. "By submitting these three affidavits, [the acting supervisor]
has committed perjury and therefore the agency cannot have articulated
a legitimate, nondiscriminatory reason for declining to renew [his]
appointment," complainant argues. The agency requests that the Commission
affirm its final order.
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).
In a claim such as the instant one which alleges disparate treatment, and
where there is an absence of direct evidence of such discrimination, the
allocation of burdens and order of presentation of proof is a three-step
process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (applying the analytical framework described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA disparate
treatment claim). First, complainant must establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination; i.e., that a prohibited
consideration was a factor in the adverse employment action. Kimble
v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).
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). Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Although the burden of production, in other words,
"going forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant. Burdine, 450
U.S. at 256.
Assuming arguendo that complainant established a prima facie case of
sex discrimination, we nonetheless find that the agency articulated
legitimate, non-discriminatory reasons for not renewing his appointment.
Specifically, complainant's supervisor testified that complainant was not
reappointed because he missed 6 out of 45 days of his final appointment
term, fell asleep on the job, and performed below the keystroke standards
for the data conversion operator position. Complainant argues that
the supervisor's explanation is pretextual because the supervisor gave
evasive, false, and inconsistent answers in investigatory affidavits.
The AJ determined that the supervisor credibly testified that supervisors
previously had been encouraged to provide limited information regarding
why an employee's appointment was not renewed in order to avoid giving
the employee grounds on which to file a grievance. We find that the
AJ's credibility determinations are not contradicted by any evidence.
We further note that although the supervisor only fully expounded upon the
reasons for not renewing complainant's contract in a post-investigation
statement and in hearing testimony, his previous investigatory affidavit
statements contain the same core reasons for not renewing complainant's
contract as his hearing testimony, i.e., complainant had poor attendance
and performance issues. We find that substantial evidence supports the
AJ's conclusion that complainant failed to rebut the agency's explanations
as pretext for unlawful discrimination. Therefore, we find that the AJ
properly found no discrimination.
CONCLUSION
Accordingly, based on a thorough review of the record, the Commission
affirms 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
_February 26, 2009_________________
Date
2
0120073793
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120073793