01997224
01-25-2002
Jimmie S. Cox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jimmie S. Cox v. U.S. Postal Service
01997224
01-25-02
.
Jimmie S. Cox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997224
Agency Nos. 4G-760-1168-96 & 4G-760-0189-97
Hearing Nos. 310-98-5549X & 310-99-5181X
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaints of unlawful employment
discrimination (1) on the bases of race (Caucasian) and disability (back
injury) alleging that his supervisor (S1) threatened to �farm him out�
and subsequently transferred him to another agency facility temporarily
and (2) on the bases of race, disability, sex (male) and retaliation
(prior EEO activity) alleging that a second supervisor (S2) changed
his starting time from 7:00 a.m. to 7:30 a.m. Complainant alleges that
the aforementioned actions by the agency violate Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. as
well as Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. For the reasons that follow,
the Commission affirms the agency's final decision.
During the period in question, complainant was a City Carrier, PS-5,
at a Texas facility of the agency. Complainant, believing he was a
victim of discrimination, sought EEO counseling and, subsequently,
filed two complaints. Complainant, in his first complaint (agency
number 4G-760-1168-96), alleged the actions mentioned above as claim
(1). Specifically, complainant stated that the term �farm out� is
derogatory and discriminatory. In his second complaint (agency number
4G-760-0189-97), complainant alleged the action mentioned above as claim
(2). Complainant stated further that the agency had changed his starting
time on several occasions within one year.
Regarding claim (1), S1 stated that he did not use the term �farm out,�
but instead told complainant that he would be loaned to another agency
facility temporarily to assist with administrative tasks that were within
his medical restrictions. S1 stated further that other employees were
also loaned. Regarding claim (2), S2 stated that all box mail needed
to be in place by 9:30 every morning and complainant was limited to
standing for two hours so his start time was changed to 7:30 to allow
appropriate coverage of the box mail section.
At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a decision finding no
discrimination. Specifically, she found that complainant is a qualified
individual with a disability and assumed that he established a prima
facie case of discrimination based on race, sex, disability and reprisal.
The AJ, however, found further that complainant failed to show that
the legitimate, nondiscriminatory reasons articulated by the agency
were pretextual. The agency issued a FAD summarily concurring with the
AJ's decision. This appeal by complainant followed.
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.
The Commission has reviewed the full administrative record and we find
that the AJ's factual findings support her ultimate factual conclusion
of no discrimination based on race or disability for claim (1) and race,
disability, sex, or reprisal for claim (2).<1> We affirm the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
___01-25-02_______________
Date
1In reaching the above determination, we assume without finding that
complainant is an individual with a disability.