0120070643
03-31-2009
Mark Kessinger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Mark Kessinger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120070643
Agency No. 4G770031203
Hearing No. 330-2005-00039X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 29, 2006 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. Complainant alleged
that the agency discriminated against him on the bases of race (Caucasian)
and in reprisal for prior protected EEO activity when: (1) on or about
March 13, 2003, his inquiry to management regarding his route being
adjusted was not honored and his route has not been adjusted; and (2)
on an unspecified date, he was not allowed time to complete his PS Form
2565.
Following a hearing, an EEOC Administrative Judge (AJ) concluded that
complainant failed to present sufficient evidence to prove that the
employment action alleged herein was motivated by complainant's race or
prior protected EEO activity. The agency adopted the AJ's decision.
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.
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, 143 (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).
The AJ concluded from the evidence presented that during the relevant
time-frame, complainant was assigned as a full-time letter carrier at the
North Shepherd Postal Station in Houston, Texas. During 2002 and 2003,
complainant was supervised by four different supervisors (S1, S2, S3, and
S4) and one Station Manager (M1). On January 2, 2002, complainant made
a written request to S2 for an inspection of his route because he felt
that his route was "over standard." Complainant also followed up this
request with additional written and verbal requests. Complainant made the
request because he felt that it was taking him more than eight hours to
deliver the mail on his route each day. Management officials explained
that they denied complainant's request because complainant's route did
not meet the standard of requiring 30 minutes of overtime or auxiliary
assistance three or more days per week for a period of six consecutive
weeks. In addition, management officials felt that complainant needed to
correct time-wasting practices that management had previously discussed
with him before they would grant an inspection of his route. The record
also shows that management officials had denied route inspections for
similarly situated employees outside of complainant's protected status
during the relevant time period.
Complainant also requested official time from S2 to fill out a formal
EEO complaint form. Complainant asserts that he was never granted the
official time to fill out the EEO form. Complainant does not recall what
day he made the request, but he states that he waited nine or ten days and
did not receive a response. The record shows that complainant regularly
uses a significant amount of official time as an EEO representative
and individual EEO complainant. The record also shows that complainant
has filed numerous EEO cases against the managers of the North Shepherd
Station for a variety of reasons.
S1 and S2 testified that, although they did not recall the particular
incident raised by complainant, it was their practice to grant him
official time whenever he was not over the ten- percent cap set by the
Postal Service for employees to conduct EEO business. Accordingly,
management asserts that complainant must have been over his ten-percent
cap at the time of his request.
Following the hearing, the AJ concluded that complainant failed
to meet his burden of presenting sufficient evidence of pretext
or discriminatory/retaliatory animus on the part of the responsible
management officials. We agree with the AJ and find insufficient evidence
in the record to support a finding that the legitimate, non-discriminatory
reasons for the employment actions herein were pretexts for unlawful
discrimination, or that the responsible management officials were
motivated by complainant's race or prior EEO activity. We also find
insufficient evidence in the record to support complainant's assertion
that the AJ was improperly biased against complainant or that the AJ's
rulings were otherwise erroneous.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
March 31, 2009
Date
2
0120070643
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120070643