0120073879
04-09-2009
David Cooper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
David Cooper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120073879
Hearing No. 450-2007-00173X
Agency No. 4G-760-0148-06
DECISION
On September 7, 2007, complainant filed an appeal from the agency's August
21, 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Rural Carrier Associate at the agency's Bardin Road Station
in Arlington, Texas. The record reflects that on the morning of August
9, 2006, complainant was given an assignment by his supervisor, and he
allegedly began yelling at her, demanding that she issue him instructions
in writing. Around 1:00 p.m. that afternoon, complainant was involved in
an automobile accident while driving a Postal vehicle near the Station.
Complainant attempted to call an acting supervisor after the accident,
and, without realizing his own supervisor had answered the phone,
allegedly cursed while asking about the acting supervisor's whereabouts.
Complainant's supervisor subsequently walked outside to conduct an
accident investigation and discovered two pieces of Express Mail in
complainant's badly damaged vehicle that were supposed to have been
delivered or returned to the station by 12:00 p.m. Complainant contended
that he had attempted to deliver the two pieces of Express Mail during
the morning and that he planned on attempting to deliver them again
that afternoon. However, complainant's supervisor determined that
complainant had never attempted delivery.
Complainant was placed off the clock after the accident. On September 1,
2006, complainant was issued a notice of removal, effective October 13,
2006, for failure to perform his delivery duties in accordance with
safety requirements resulting in a preventable accident, falsification
of an Express Mail delivery notice, and inappropriate conduct in the
workplace.
On November 2, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (African American), sex
(male), and color (Black) when, on August 9, 2006, he was placed off the
clock, and he received a Notice of Removal effective October 13, 2006.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and a notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on July 25, 2007 and issued a
decision dated August 14, 2007 finding no discrimination. Specifically,
the AJ found that complainant failed to establish that the agency's
legitimate, nondiscriminatory reasons for its actions were a pretext for
unlawful discrimination. The agency subsequently issued a final order
adopting the AJ's finding that complainant failed to prove that he was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant requests that the Commission reverse the agency's
decision because he was "wrongfully disciplined." Complainant indicates
that he failed to include additional "findings or witnesses" in the
record due to his "initial ignorance of the EEO judicial process" and asks
the Commission to consider several statements submitted on appeal.1 In
response, the agency urges the Commission to affirm its final decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case
of discrimination, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant's supervisor
testified at the hearing that complainant was placed off the clock and
terminated for being involved in a preventable accident, falsifying
Express Mail records, and engaging in inappropriate conduct towards a
management official. Additionally, the supervisor testified that she
believed that complainant was using his cell phone at the time of his
accident, and she believed that his cell phone use may have contributed
to the accident.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. We find that the AJ's determination that complainant failed
to establish pretext is supported by substantial evidence in the record.
On appeal, complainant provides no evidence of pretext and does not
present any information that would suggest that the agency's actions
were motivated by discriminatory animus.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
factual findings are supported by substantial evidence in the record.
We discern no basis to disturb the AJ's decision. Accordingly, after
a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in the
decision, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 9, 2009
Date
1 As a general rule, the Commission will not consider new evidence on
appeal unless there is an affirmative showing that the evidence was not
reasonably available prior to the investigation or during the hearing
process. EEO Management Directive 110, Chapter 9 � VI.A.3 (1999).
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0120073879
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073879