01A21997_r
04-15-2004
Antonio Hernandez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Antonio Hernandez v. United States Postal Service
01A21997
April 15, 2004
.
Antonio Hernandez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21997
Agency Nos. 4H-320-0195-99
4H-320-0070-00
Hearing Nos. 150-A0-8928X
150-A1-8405X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning two equal employment opportunity (EEO) complaints of unlawful
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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Distribution/Window Clerk at the
agency's Rio Piedras Station in San Juan, Puerto Rico, filed two formal
EEO complaints on September 3, 1999 and March 6, 2000, respectively.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination on the bases of national origin (Hispanic) and disability
(deformed and weak bones of the hand) when:
on March 12, 1999, he was denied a transfer to the Gainesville, Florida
Post (Agency No. 4H-320-0195-99); and
on December 10, 1999, he was denied a transfer to the Lake City, Florida
post office (Agency No. 4H-320-0070-00).
In a final decision issued on October 22, 1999 final decision, the
agency dismissed Agency No. 4H-320-0195-99 on the grounds of untimely
EEO Counselor contact. On appeal, the Commission reversed the agency's
dismissal and remanded the complaint to the agency for further processing.
Hernandez v. United States Postal Service, EEOC Appeal No. 01A00982
(May 16, 2000).
Thereafter, at the conclusion of the investigation of the two captioned
complaints, complainant received a copy of the investigative report and
requested a hearing before an EEOC Administrative Judge (AJ). On March
3, 2001, the agency filed a Motion to Consolidate, requesting that
Agency No. 4H-320-0070-00 be consolidated for hearing with Agency
No. 4H-320-0195-99. Following a hearing, the AJ issued a decision
finding no discrimination with respect to Agency Nos. 4H-320-0195-99
and 4H-320-0070-00.
Regarding discrimination on the basis of national origin, the AJ
found that complainant failed to demonstrate that similarly situated
employees not in complainant's protected class were treated differently
under similar circumstances. Regarding the denial of transfer to the
Gainesville post office (Agency No. 4H-320-0195-99), the AJ noted
that only one out of the six individuals who received transfers to
Gainesville holds the same position as complainant. The AJ further
noted that the individual who was transferred to Gainesville was from
the same commuting area as the Gainesville facility. Furthermore, the
AJ noted that complainant did not dispute a Labor Relations Specialist's
testimony or the Postmaster's affidavit stating that transfers from the
same geographic location are given greater consideration.
Regarding the denial of transfer to the Lake City post office (Agency
No. 4H-320-0070-00), the AJ found that only one individual was given
a transfer after complainant submitted his request for a transfer to
the Lake City facility. The AJ also found that the individual who was
transferred to the Lake City facility was a letter carrier, a position
for which complainant was not qualified.
Regarding discrimination on the basis of disability, the AJ found that
complainant failed to present any evidence reflecting that he is a person
with a disability.
Furthermore, the AJ found that there was nothing in the record that the
denials of a transfer was a result of complainant's national origin
or disability. The AJ concluded that the denials of a transfer were
the result of �a combination of bad timing, a poor evaluation from
[complainant's] supervisor, and too many people within the Lake City
and Gainesville community areas who were also seeking transfers.�
The agency's final order implemented 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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the record supports a finding that
the agency articulated legitimate, nondiscriminatory reasons for
its actions.<1> Specifically, the record reveals that complainant
received a "below average" evaluation based on a prior suspension and
attendance problems. Moreover, the record supports the AJ's finding
that the transfer denials were further predicated upon the �below
average� evaluation combined with other factors such as poor timing and
preference for transfer applicants who were within commuting distance
of the transfer sites. Moreover, we find that complainant did not
sufficiently rebut this explanation with evidence from which a reasonable
fact- finder could conclude that unlawful discriminatory animus motivated
the denial of transfer to either the Gainesville or Lake City post office.
The Commission determines that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision referenced
the appropriate regulations, policies, and laws. We discern no basis to
disturb the AJ's finding of no discrimination. Therefore, after a careful
review of the record, we AFFIRM the agency's final order implementing
the AJ's finding of no discrimination.
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
April 15, 2004
__________________
Date
1The Commission presumes for purposes of
analysis only, and without so finding, that complainant is a person with
a disability.