01a00331
02-08-2000
Michael Sands, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro Area), Agency.
Michael Sands, )
Complainant, )
) Appeal No. 01A00331
v. ) Agency No. 4B-140-0064-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(N.E./N.Y. Metro Area), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of reprisal (prior EEO activity),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges he was discriminated
against when, on April 23, 1998, complainant was issued a Letter of
Decision terminating his employment effective April 25, 1998, charging
him with obnoxious behavior/failure to failure instructions, which was
reduced to a Notice of 14-Day Suspension via the grievance process. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Distribution Window & Backup Clerk at the agency's Rochester, New
York facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a formal complaint(s)
on August 10, 1998.
At the conclusion of the investigation, complainant received a copy
of the investigative report(s) and requested a hearing before an EEOC
administrative judge (AJ). The AJ issued Findings of Fact and Conclusions
of Law without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case
of reprisal discrimination because the complainant engaged in prior
protected activity; the alleged responsible official was aware of the
activity; the complainant suffered an adverse employment action; and
there existed a causal connection between the prior protected activity
and the adverse action in question.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the complainant's
approach to the clerk inquiring as to why he was not being waited on
when he called for the overflow mail to his personal post office box,
among other things, was threatening and hostile. The co-worker reported
feeling threatened by complainant. This incident was the latest in a
series of incidents where complainant failed to follow instructions and
exhibited obnoxious behavior. Complainant had been cautioned several
times to cease confrontational, obnoxious behavior towards his co-workers
and had received prior discipline.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that at no point did complainant fundamentally challenge (or proffer by
way of allegation) the affidavits of record submitted by the alleged
responsible officials or the corroborating employee statements with
regard the above cited incident. The agency's final decision implemented
the AJ's Findings of Fact and Conclusions of Law. On appeal, complainant
restates arguments previously made in his motion in opposition to summary
judgment and dismissed by the AJ as irrelevant to the case at hand.
The agency responds by restating the position it took in its FAD, and
requests that we affirm its final decision.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist 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 the
AJ's Findings of Fact and Conclusions of Law correctly analyzed the
relevant facts and referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that
any of the agency's actions were in retaliation for complainant's prior
EEO activity or were motivated by discriminatory animus. We discern no
basis to disturb the AJ's findings. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
Feb 8, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
Equal Employment Assistant 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 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at WWW.EEOC.GOV.