01972629
03-12-1999
Brenda J. Alston, Appellant, William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/ Mid West Areas) Agency.
Brenda J. Alston v. United States Postal Service
01972629
March 12, 1999
Brenda J. Alston, )
Appellant, )
)
) Appeal No. #01972629
) Agency No. 4-J-480-1107-94
) Hearing No. 230-96-4111X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/ Mid West Areas) )
Agency. )
)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission ("Commission") from the final decision of the United States
Postal Service ("agency"), concerning her allegation that the agency
violated Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. In her complaint, appellant
alleged that the agency discriminated against her on the basis of race
(Black) when, on June 22, 1994, she was terminated as a Part-Time
Flexible Distribution Clerk for inadequate work performance, and was
not reinstated, or given the opportunity to be reinstated to a different
position and location. Appellant contends that two White male employees,
who allegedly also had similar inadequate work performance, were both
transferred to different positions and locations. This appeal is accepted
by the Commission in accordance with EEOC Order No. 960.001.
Following an investigation of this complaint, appellant requested
a hearing before an Equal Employment Opportunity Commission ("EEOC")
administrative judge ("AJ"). A hearing was conducted on October 30, 1996.
On December 23, 1996, the AJ issued a Recommended Decision (RD) finding
no discrimination.
The AJ found that appellant failed to establish a prima facie case
of discrimination on the basis of race. Assuming that appellant
had established a prima facie case of race discrimination, the AJ
found that appellant failed to establish that the agency's legitimate,
non-discriminatory reasons for terminating her were pretextual. The AJ
found that appellant was terminated because she failed to meet her
performance expectations during her probationary period. Appellant failed
to adhere to instructions, which subsequently required her supervisors
to repeatedly instruct her.
Additionally, the AJ did not find appellant's testimony that she was
subjected to racial comments and slurs by her co-workers and supervisors
credible. Furthermore, the AJ did not find appellant's testimony that she
was called a "stupid nigger" by one of her acting supervisors credible.
The AJ determined that appellant's failure to raise this "particular
statement during the investigation [of this complaint], weighs against
the credibility that it occurred as [appellant] claimed". However, the
AJ did find the agency's testimony denying this very offensive racial
slur credible.
Additionally, the AJ found that one of appellant's White male co-worker's
was not treated more favorably than she because he was transferred.
This co-worker had a better attitude, and work performance than appellant
during the probationary evaluation period. Furthermore, the AJ found
that appellant did not offer any evidence showing that the agency had
an obligation to inform her that she could request a transfer. Also,
the AJ found that had appellant requested a transfer, the agency would
not have recommended her due to poor work performance. On January 7,
1997, the agency issued a final decision, adopting the AJ's finding of
no discrimination. It is from this decision that appellant now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision sets forth the relevant facts,
and properly analyzes the appropriate regulations, policies, and laws
applicable to appellant's complaint as a disparate treatment claim.
Therefore, the Commission discerns no basis in which to disturb the
agency's finding of no discrimination. With particular reference to
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.
There is substantial evidence in the record to support the AJ's findings.
See Gathers v. United States Postal Service, EEOC Request No. 05890894
(November 9, 1989); Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987);
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision finding no discrimination.
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 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 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations