01973612
03-10-1999
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
Darrell McCants v. United States Postal Service
01973612
March 10, 1999
Darrell McCants,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny/Mid-Atlantic Areas),
Agency.
Appeal No. 01973612
Agency No. 1D-281-1129-94
Hearing No. 140-95-8184X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegation that the agency discriminated against him on
the basis of race (African-American), when on May 10, 1994, he received
notification that effective May 14, 1994, his scheduled reporting time was
being changed from 1500 hours to 1700 hours, in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960.001. For the following reasons, the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was
employed as a Distribution Clerk (Registry Clerk, Tour 3), PS-05, at
the agency's Processing and Distribution Center in Fayetteville, North
Carolina. Believing that he was the victim of discrimination, appellant
sought EEO counseling and, thereafter, filed a formal EEO complaint.
The agency accepted the complaint for investigation and complied with
all of our procedural and regulatory prerequisites. Subsequently,
appellant requested a hearing before an EEOC Administrative Judge
(AJ), which was held on November 26, 1996. Thereafter, the AJ issued a
Recommended Decision (RD) finding no discrimination. In her RD, the AJ
concluded that appellant failed to establish a prima facie case of race
discrimination. Specifically, the AJ reasoned that appellant failed to
show that he was treated different from similarly situated comparative
employees. Thereafter, the agency adopted the RD and issued a FAD, dated
February 25, 1997, finding no discrimination. It is from this agency
decision that appellant now appeals. On appeal, appellant challenges,
among other things, the AJ's credibility determinations.
The investigative record reveals that appellant was permanently assigned
to the registry room. Appellant's alleged similarly situated comparative
employees were not permanently assigned to the registry room, as they
were employed in other bid positions, and not as registry clerks.
After careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
sets forth the relevant facts, and properly analyzes the appropriate
regulations, policies and laws. The Commission discerns no basis to
disturb the AJ's finding. With particular reference to appellant's
contentions concerning the AJ's credibility determinations, we note that
in an administrative hearing where the motivation and credibility of
witnesses are critical, the credibility findings of the AJ are entitled
to great weight. See Anderson v. Bessemer City, North Carolina, 470
U.S. 564, 575 (1985); Wrenn v. Gould, 808 F.2d 493,499 (6th Cir. 1987).
Accordingly, the FAD is AFFIRMED.
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. � l6l4.604(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. 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:
March 10, 1999
______________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations