01996203_r
11-09-2001
William H. Johnson, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William H. Johnson, Jr. v. United States Postal Service
01996203
November 9, 2001
.
William H. Johnson, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996203
Agency No. 1E-981-0024-97
Hearing No. 380-98-8071X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant claims that
he was discriminated against on the bases of race (African-American),
color (black), national origin (African-American), sex (male), and in
retaliation for prior EEO activity when, on January 14, 1997, complainant
was issued a letter of warning for unacceptable conduct. For the reasons
described below, the Commission affirms the agency's final decision.
The record reveals that complainant, a laborer-custodian at the agency,
filed the instant formal EEO complaint with the agency on March 30, 1997.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a recommended decision
finding no discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination on the bases of race, color and national origin, but not
on the basis of reprisal because complainant failed to show a causal
connection between incident at issue in the instant complaint and those
at issue in a prior complaint . The AJ dismissed the basis of sex during
the prehearing conference because all possible comparators were male.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for issuing complainant a letter of warning on
January 14, 1997, thereby meeting its burden of production. According to
the agency, complainant was issued the letter of warning primarily because
on January 7, 1997, complainant left his assigned work area to confront
another employee (Caucasian) on a different floor regarding a verbal
altercation in the parking lot. Complainant was also issued the letter
of warning for working in an unsafe manner and for calling the employee
who reported that complainant was working unsafely, inappropriate names
such as �rat scab.�
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. In trying to establish pretext, complainant maintained
that the agency applied its �zero tolerance� policy on violence
in the workplace more stringently against Black people than White
people. Complainant argued that if the agency applied the policy in a
non-discriminatory manner, the Caucasian employee with whom complainant
had the verbal altercation, would have been disciplined as well.
In reaching the conclusion that complainant did not show pretext, the AJ
found that although the actions of the other agency employee involved in
the altercation warranted discipline, that employee retired within seven
days of the incident, on January 14, 1997, and could not be disciplined.
Additionally, the AJ found that complainant's comments to another employee
who reported that complainant was working unsafely, warranted discipline.
The AJ also noted that complainant failed to produce an actual comparator
to himself illustrating that a similar incident resulted in different
discipline.
The agency's final decision implemented the AJ's recommended decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final decision.
The Commission will uphold all post-hearing factual findings by an AJ
if supported by "substantial evidence" in the record. See 29 C.F.R. �
1614.405(a). 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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws, We find no basis to
disturb the AJ's decision. Complainant has failed to show that the
agency's action was motivated by prohibited discrimination.
Therefore, we AFFIRM the agency's final decision finding 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
November 9, 2001
__________________
Date