01971448
03-17-1999
Debra V. Hunt Appellant, v. William J. Henderson Postmaster General, United States Postal Service (Northeast/New York Metro Areas), Agency.
Debra V. Hunt v. United States Postal Service
01971448
March 17, 1999
Debra V. Hunt )
Appellant, )
) Appeal No. 01971448
v. ) Agency No. IA-1194-93
) Hearing No. 170-95-8331X
William J. Henderson )
Postmaster General, )
United States Postal Service )
(Northeast/New York )
Metro Areas), )
Agency. )
______________________________)
DECISION
On December 4, 1996, Debra V. Hunt (appellant) timely appealed the final
decision of the United States Postal Service (agency), which she received
on November 6, 1996, concluding she had not been discriminated against
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In her complaint, appellant alleges that she
was discriminated on the basis of race (Black) when: (1) on February 17,
1993, she was placed on emergency suspension; and (2) effective April
18, 1993, her employment as mail processor was terminated. The appeal
is accepted by the Commission in accordance with EEOC Order No. 960.001.
Appellant began employment with the agency as a Distribution Clerk on
July 16, 1988. On December 28, 1991, appellant assumed the position of
Mail Processor, Tour 3. On February 17, 1993 an incident arose between
appellant and an acting supervisor (AS) (black, female). The record
reflects that appellant and AS engaged in a 3-4 minute argument over
the seating of employees in the Manual Distribution Union. A week
prior to the argument another supervisor had suggested that employees
save seats for themselves by placing a time card in the rack. Appellant
utilized this process to save the seat next to appellant for a co-worker.
Upon return from a break, appellant's co-worker discovered that her time
card was moved. Appellant challenged AS's presumed role in the removal
of the co-worker's time card. AS asserted that she was in charge and
had the final say on the seating arrangements. Both appellant and AS
were very angry and stood face to face. AS was six months pregnant.
The record reflects that in the heat of the argument, appellant and
AS bumped into each other, causing AS to take a few steps backward.
Another supervisor, AM (Black, male), approached and separated the two
and attempted to resolve the dispute. Appellant returned to her seat
and AS went to the tour superintendent's office to write up the incident.
AS asserted that appellant assaulted AS by body slamming her and touching
her in the face while swinging her arms. Appellant's supervisor (S1)
(white, male) was advised of the incident and thereafter conducted an
investigation. Later that day, appellant was placed in an Emergency
Off-Duty Status and charged with: (1) physically assaulting an employee
(204B supervisor) and (2) Insubordination. On March 17, 1993, appellant
was issued a Notice of Removal which became effective on April 18, 1993.
Appellant filed a union grievance which was subsequently denied.
On April 20, 1993, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against her as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
A hearing took place on October 22, 1996 and on October 25, 1996, the
AJ issued a recommended decision finding no discrimination. In that
decision the AJ held that appellant failed to present a prima facie case
of race discrimination in that appellant failed to provide any similarly
situated individual, outside appellant's protected class, who received
more favorable treatment than appellant. Specifically, the AJ found
that almost all of the comparison individuals cited by appellant worked
under different supervisors than those who took action against appellant.
With respect to the only individuals with the same supervisors, C1 and C2,
the incidents of misconduct involved the use of foul language which the AJ
did not find similar to the conduct allegedly engaged in by appellant.
The AJ also found that the agency articulated a legitimate,
non-discriminatory basis for its employment action. S1 testified that
while he did not witness the incident, he interviewed the two supervisors
and the union representative who were present during the altercation
and determined that there was physical contact. S1 explained that he
found such conduct to warrant placing appellant in an off-duty status
which he testified is standard procedure. Another supervisor concurred
with S1 after talking to several witnesses. Finally, S1 testified that
he decided to remove appellant after further investigation, including
obtaining appellant's statement and reviewing appellant's lengthy
disciplinary record which included a seven-day suspension within the past
six months. After reviewing the entire investigative file, the manager,
Distributions Operations, Tour 3 also agreed with S1's recommendation
to remove appellant.
Finally, the AJ determined that appellant failed to prove that the
agency's rationale was not worthy of credence or that the agency's
employment action was motivated by race. Specifically, the AJ noted
that while the record established that AS greatly exaggerated what
was more likely an unintentional touching during a heated argument,
appellant had nevertheless failed to present specific probative evidence
indicating that the conclusions reached by the investigating officials
were pretext or that race was a factor in the employment decisions.
On November 4, 1996, the agency adopted the findings and conclusions
of the AJ and issued a final decision finding 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 properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56
(1981). The Commission concludes that, in all material respects, the AJ
accurately set forth the relevant facts and properly analyzed the case
using the appropriate regulations, policies, and laws. Based on the
evidence of record, the Commission discerns no basis to disturb the AJ's
finding of no discrimination. Nothing proffered by appellant on appeal
differs significantly from the arguments raised before, and given full
consideration by, the AJ. 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 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:
March 17, 1999
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations