01997261
02-22-2002
Johnny Mack Reed, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Johnny Mack Reed v. United States Postal Service
01997261
02-22-02
.
Johnny Mack Reed,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997261
Agency No. 4-G-770-0083-98
Hearing No. 330-98-8114X
DECISION
Complainant timely appeals from the agency's final decision of September
2, 1999. The appeal is accepted pursuant to 29 C.F.R. � 1614.405. His
appeal concerns his equal employment opportunity (EEO) complaint of
unlawful 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. Complainant alleges that his supervisor
discriminated against him on the bases of his race (African-American),
and disability (severe headaches) when, on June 22, 1997, the supervisor
did not submit complainant's PS Form 991 application for the Associate
Supervisors Program to the Benefits Office for consideration. For the
following reasons, the Commission AFFIRMS the agency's final decision,
dated September 2, 1999.
The record reveals that complainant is a disabled veteran and a letter
carrier at the DeMoss Postal Station in Houston, Texas. The record
reveals that on June 22, 1997, complainant submitted his PS Form 991
application to the supervisor on duty in Zone 81 on that day (Supervisor
1) for consideration for the Associate Supervisor's Program, a training
program. Supervisor 1 is also African-American and a veteran, but he has
no disabilities. The record shows that Supervisor 1 signed the PS Form
991 and placed it in a batch of others to be forwarded to the Benefits
Office. He testified that this was the same process that he followed
for the other applications. Complainant then went on leave for a week
and when he returned, complainant learned that the Benefits Office
had not received his PS Form 991 application for consideration. After
complainant did not receive a response from the Employee Benefits Office,
the supervisor arranged for him to take a copy of his form to the Employee
Benefits Office in order to be eligible for the Associate Supervisor
Program. In addition, the record shows that when the agency's senior
personnel specialist learned that complainant submitted the form which
the office had not received, she said that she attempted to contact
complainant to have him turn in a copy of the application. She was not
able to reach him. Complainant did not submit another PS Form 991 to the
Benefits Office and was not considered for the program. The application
of a Caucasian coworker, who also turned in his PS Form 991 to Supervisor
1, was forwarded and received by the Benefits Office for consideration.
The Benefits Office also received applications from eight other Black
employees.
Believing that he was the victim of discrimination, complainant filed
a formal EEO complaint with the agency on October 31, 1997, alleging
that the supervisor's act of not properly processing his form kept him
from advancing in the Postal Service because of complainant's race and
disability. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability discrimination. Specifically, the AJ found that, assuming
that complainant has shown that he is a qualified individual with a
disability, complainant had not shown that Supervisor 1 did not turn
in the application because of complainant's disability. With regard to
the race allegation, the AJ found that Supervisor 1 provided complainant
with a favorable recommendation and had contacted the personnel specialist
to have complainant's application considered after the closing date. He
found that there was no evidence that Supervisor 1 failed to forward
the application because of his race. The AJ found that complainant did
not establish that more likely than not, the agency's articulated reason
(that the application was lost on route) was a pretext to mask unlawful
discrimination.
The agency's final September 2, 1999 decision implemented the AJ's
decision. On appeal, complainant restates arguments previously made at
the hearing. In response, the agency restates the position it took in its
FAD, and requests that we affirm its final decision of September 2, 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). He
must generally 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997).
The AJ concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions because the AJ found that
complainant's application was lost between the station and the Benefits
Office. 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).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
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); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
and Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Assuming for purposes of
analysis that complainant established that he was an individual with a
disability, we find that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward his
disability or race or were a pretext for discrimination. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final decision of September 2, 1999 .
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
_02-22-02____________
Date