01971127
01-15-1999
Ronald Carpenter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (P/W Region), Agency.
Ronald Carpenter, ) Appeal No. 01971127
Appellant, ) Agency No. 1H-391-1014-95
v. ) Hearing No. 130-95-8098X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(P/W Region), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.; and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Section 621 et seq.
See EEOC Order No. 960.001. In his complaint, appellant alleged that
he was discriminated against based on his race (Black) and age (43)
when he was terminated from his position as a Casual Mail Handler.
Appellant was appointed as a Casual Mail Handler for a period not to
exceed March 14, 1994, but was terminated on August 22, 1994. The Tour
Supervisor had remarked that the facility was �overage� one casual
employee, a remark which appellant interpreted as indicating that the
agency preferred to keep younger employee for longevity. In addition,
appellant established that his supervisor used a racially derogatory
term in referring to another employee. The other employee's girlfriend
said that when she called the facility, she heard the supervisor say that
�the n----- was here minutes ago.� The Tour Superintendent testified he
terminated appellant because he was extremely slow in completing tasks
and, even after being shown faster methods of work, would revert back
to the slower methods. The Vice President of the union, who was also a
Mail Handler, supported the Tour Superintend's testimony that appellant
was a slow worker.
Appellant timely sought EEO counseling and filed his instant EEO
complaint, which was accepted and investigated by the agency. Thereafter,
appellant timely requested a hearing before an EEOC Administrative
Judge ("AJ"). After a hearing, the AJ issued a recommended decision
("RD") finding no discrimination. While the AJ found that appellant's
supervisor had used a racially derogatory term to refer to another
employee, which the AJ condemned, the AJ found that the decision to
terminate appellant was made by the Tour Superintendent. The AJ found
that the �overage� remark had no correlation to appellant's age, and that
the preponderance of the evidence did not establish that the agency's
articulated legitimate reasons for its actions were a pretext for race
or age discrimination. The agency adopted the RD in its FAD. Appellant,
through his attorney, timely appeals and argues that the supervisor's use
of a racially derogatory term establishes that appellant was subjected
to a racially hostile environment and constitutes �direct proof that
the supervisor who engineered [his] termination was biased ... on the
basis of [appellant's] race.� The brief also alleges that appellant
failed to receive performance evaluations, that he was not apprised
of performance standards, and that non-Blacks were made transitional
employees rather than casual employees. The brief contains other
arguments also made before the AJ, such as that appellant completed the
assignments given him and that he received less assistance than other
employees. The brief also asserts that no other employee was removed
for �Failure to Finish Assigned Tasks In a Timely Manner;� rather,
other employees who were removed for this reason �did something wrong
in addition to merely being slow or allegedly untimely.�
However, after a thorough review of the record (including argument and
evidence not specifically discussed herein), the Commission finds that the
RD adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission notes that it generally
will not disturb the credibility determination of an AJ. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July
26, 1990). In addition, the Commission is not persuaded that appellant
established that he was subjected to a racially hostile environment based
upon a remark overheard by the girlfriend of a coworker, a remark neither
made in appellant's presence nor directed toward him. See McGivern
v. United States Postal Service, EEOC Request No. 05930481 (March 17,
1994); Vargas v. Department of Defense, EEOC Request No. 05931047 (October
7, 1993). Accordingly, the Commission discerns no basis to disturb
the AJ's finding that appellant failed to establish discrimination.
Therefore, it is the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
January 15, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations