0120073005
09-21-2007
Christopher M. Collier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Christopher M. Collier,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073005
Agency No. 4H330024406
Hearing No. 510-2007-00018X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 2, 2007 final order concerning his equal
employment opportunity (EEO) complaint alleging 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. Complainant alleged that the
agency discriminated against him on the bases of race (African-American),
national origin (African), sex (male), color (Black), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when on July 6, 2006, he was issued a letter of warning for
failure to follow instructions, on July 11, 2006 and July 12, 2006,
he was placed on emergency suspension, and on August 24, 2006, he was
issued a notice of removal.
Following an investigation, complainant, a Letter Carrier, requested a
hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing
and issued a finding of no discrimination. The AJ found that the agency
articulated legitimate nondiscriminatory reasons for its actions, namely,
that complainant was issued a letter of warning because he failed to
follow instructions, and he was placed on emergency suspension and
was issued a notice of removal because he exhibited aggressive hostile
behavior toward a coworker. The AJ found that complainant failed to
show that the articulated reasons were pretext for discrimination.
On appeal, complainant contends that witnesses lied, were biased,
and changed their stories. He also maintains that because he had a
favorable outcome at his grievance procedure the EEOC should accept
that finding. Additionally, complainant contends that the AJ stopped
him from arguing collateral estoppel and double jeopardy and did not
allow him to cross-examine witnesses in the manner that he wanted to and
refused to allow him to submit discovery that he felt was necessary.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record. The Commission finds that even assuming arguendo
that complainant established a prima facie case as to all matters, we
find the agency articulated legitimate nondiscriminatory reasons for
its actions. Specifically, complainant failed to follow instructions
and therefore was issued a letter of warning, he was placed on emergency
suspension because it was believed that he had been aggressive toward a
coworker and finally, he was issued a notice of removal because there
is a zero tolerance policy against violence in the work place and it
was believed that he had violated that policy. Further, the Commission
finds that complainant failed to show that the agency's reasons were
pretext for discrimination.
With respect to complainant's contentions on appeal, we find that
complainant never denied that he failed to follow instructions or that
he got upset. We find that it was complainant's own testimony that was
pivotal in this case. Moreover, the Commission finds that complainant
failed to show that his protected bases were factors in the actions taken
against him. In fact, the record evidence supports the agency's argument
that it took action against him because of his behavior. Finally, the
Commission finds that the AJ has control over the hearing process and
can decide what materials are allowed and which are excluded. We also
find that the AJ correctly limited the testimony regarding complainant's
successful grievance because the finding for the grievance involved
agency work rules and policy issues while the EEO complaint involved
whether the actions taken against him were based on his protected bases
or based on his behavior and actions.
Accordingly, the Commission affirms the 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
______9/21/07____________
Date
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0120073005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073005