01971736
02-05-1999
Edwin Garcia, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (All./Mid-Atl. Region), Agency.
Edwin Garcia, ) Appeal No. 01971736
Appellant, ) Agency No. 62-0160-92
v. ) Hearing No. 170-95-8316X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(All./Mid-Atl. 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 Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
See EEOC Order No. 960.001. In his complaint, appellant alleged that he
was discriminated against based on his national origin, color and race
(Black Puerto Rican), as well as his physical disability (injuries to
lower back, right knee and both ankles) and mental disability (depressive
neuroses/stress related disorder) when he was denied: (1) PS-5 level
pay since March 1992; and (2) a reassignment to the Main Post Office in
Newark, New Jersey.
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. The agency adopted the RD in its FAD.
In the RD, the AJ found as follows: In 1987, during his employment as
an Air Records Processor, PS-5, at the Airport Mail Facility (�AMF�) in
Newark, New Jersey, appellant began providing information to State and
Federal prosecutors regarding criminal activities. In 1990, appellant
began providing similar information to Postal Service Inspectors.
This information ultimately resulted in the arrest of AMF employees, which
led to concerns about appellant's safety. The Postal Service Inspectors
facilitated appellant's transfer from the AMF. First, appellant briefly
was sent to two other facilities in New Jersey. In early 1991, appellant
met with a Postal Inspector (the �PI�) and an agreement was reached which
provided that appellant would be reassigned to the General Mail Facility
(�GMF�) in Wilkes-Barre, PA, as a part time Flexible Mail Handler, PS-4.
While there, appellant would function as a Confidential Informant (�CI�)
and, in exchange for providing information about illegal drug activity at
the GMF, it would be arranged that appellant would receive the difference
between PS-4 and PS-5 level pay. In order to receive this differential,
appellant was directed to submit his payroll statements to the PI.
Appellant believed that his �cover was blown� approximately 30 days after
his arrival at the GMF. In addition, while he was able to provide the
PI with information regarding illegal firearms, union leader activities
and other matters, he did not provide any information regarding illegal
drug activity at the GMF, although the PI had instructed appellant that
the agency only was interested in narcotics. The AJ found that after six
months, appellant ceased to provide the PI with his payroll statements.
The PI also testified that appellant was ineffective in his role as a CI.
Insofar as appellant compared his treatment to that of another CI (�CI-1")
outside his protected groups, the PI testified that CI-1 was effective
in his role and had submitted the appropriate payroll information.
(Appellant withdrew his request that CI-1 testify at the hearing.)
In January 1992, appellant submitted a request for reassignment to
the Main Post Office in Newark, New Jersey. This request was denied.
The AJ found that with the exception of skilled maintenance specialists,
no agency employee was accepted for reassignment to the Main Newark
Post Office during the applicable period because increased automation
had decreased the number of positions available at the facility.
The AJ found that the official who denied appellant's request for
the reassignment was unaware of his race, color or national origin.
While appellant argued that agency officials had facilitated CI-1's
request for a reassignment from the GMF to Las Vegas, the AJ again
noted that appellant had withdrawn his request for CI-1's appearance
at the hearing, and found that appellant's testimony was insufficient
to establish that his request for a reassignment to New Jersey was
sufficiently similar to CI-1's request for a reassignment to New Jersey.
Accordingly, while the AJ found that appellant's physical impairments
constituted a disability as defined by the Commission's Regulations,
the AJ found that appellant failed to establish a prima facie case of
discrimination on the bases of race, color, national origin or disability
with respect to either of his allegations.
In the brief filed on appeal, appellant's counsel reviews the testimony of
each of the witnesses. Counsel argues that appellant acted as a CI to the
best of his ability; that he was not responsible for any ineffectiveness
which resulted from his �cover being blown� or from his status as a
non-narcotic user; and that, had he discovered any use of narcotics,
he would have reported it. The brief argues that the contract between
the Postal Service and appellant regarding his service as a CI was
breached by the agency (including an agreement that appellant and his
wife be transferred to Puerto Rico, which appellant had not requested on
the basis that he was to first be transferred to New Jersey and then to
Puerto Rico). The brief contends that appellant was similarly situated
to all other CIs and, thus, a discriminatory motive can be inferred since
there can be no explanation except a discriminatory animus for denying
appellant the benefit of the bargain he reached with the Postal Service
to act as a CI. Accordingly, counsel asserts that appellant established
a prima facie case of discrimination and that the agency failed to rebut
this prima facie case because the �[PI] was never asked if the treatment
accorded to [appellant] had any relationship to the fact that he was
[H]ispanic or suffered from any physical disabilities.� Specifically,
with respect to the denial of PS-5 level pay, the brief asserts that the
AJ simply erred in finding that appellant failed to submit his payroll
information, as testified to by the PI, because appellant testified that
he did submit the information. Regarding the denial of a reassignment
to New Jersey, the brief concedes that no other employee was granted a
reassignment to that facility, but argues that the �issue is not so easily
resolved� since �it was part and parcel of his agreement� to act as a CI.
In its comments on the appeal, the agency argues that the AJ properly
determined that appellant failed to establish a prima facie case of
discrimination.
After a thorough review of the record, 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, where, as here,
such determinations are based on the AJ's observation of the witnesses.
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). 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:
February 5, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations