0120070519_r-Denton_-_Title_vii_and_age-nd-Merits_Short_Form
08-25-2008
James M. Denton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James M. Denton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070519
Agency No. 4C-400-0028-05
Hearing No. 240-2005-00164X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's October 24, 2006, 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., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
Complainant alleged that the agency discriminated against him on the
bases of sex (male) and age (59) when on or about January 2, 2005, he
was constructively discharged, during his probationary period, from his
position as a part-time flexible city carrier.
On November 17, 2004, complainant was hired as a part time flexible
city carrier at its Owensboro Post Office. Complainant was required
to serve a ninety day probationary period. On December 27, 2004,
complainant's supervisors issued complainant a thirty-day evaluation
with unacceptable ratings for "work quantity" and "work methods."
The evaluation contained a total of six factors. By memorandum dated
January 3, 2005, complainant's supervisors notified him that he would
be terminated effective January 3, 2005. On March 21, 2005, complainant
filed the present action.
Following an investigation by the agency, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ assigned to the case
held a hearing on January 19, 2006, and thereafter issued a finding of no
discrimination. The AJ found that complainant had failed to establish a
prima facie case of sex and age discrimination, in that he was unable to
produce any evidence that any employees made any age related comments as
he had alleged or that his sex was considered. The AJ also found that
complainant was not subjected to constructive discharge as he was not
able to show that he was subjected to an intolerable work situation or
that the agency's decision to allow him to resign was based on anything
other than his inability to perform the essential functions of his job,
i.e., carrying the mail in a timely fashion.
The agency issued a final notice fully implementing the AJ's finding of
no discrimination.
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).
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.
The Commission finds that even assuming arguendo that complainant
established a prima facie case as to both bases, the agency has
articulated a legitimate nondiscriminatory reason for its action, namely
that complainant was allowed to resign during his probationary period
because of his slow delivery performance. We find that complainant
has not shown that the agency's reason is pretext for discrimination.
Testimony at trial indicated that despite additional training, a route
that typically took one to two hours to deliver, took complainant
four hours to complete. The agency maintained that while complainant
showed a little improvement he did not demonstrate improvement to the
point where it was believed that he would ever finish the route in a
timely manner. A decision was therefore made to terminate complainant
during his probationary period because he was not able to meet time
delivery standards. The Commission also finds that complainant
failed to establish that he was subjected to constructive discharge.
The record reveals that complainant was allowed to resign instead of
being terminated so that he could possibly be rehired by the agency in a
non-carrier position. The Commission finds that complainant resigned in
order to avoid termination for legitimate reasons and there is no evidence
that complainant left employment due to intolerable working conditions.
Accordingly, we find the Administrative Judge's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
___08/25/2008_______________
Date
4
0120070519
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036