0120073912
04-09-2009
Kevin L. Fields, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Kevin L. Fields,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120073912
Hearing No. 460-2007-00081X
Agency No. 4G-770-0001-07
DECISION
On September 11, 2007, complainant filed an appeal from the agency's
August 10, 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
The record reflects that complainant was hired in August 2006 as
a Temporary Casual Employee at the agency's Texas City Post Office.
In September 2006, complainant's supervisor, the Officer in Charge (OIC1),
was informed by the agency's Office of the Inspector General (OIG) that
the OIG wanted to speak with complainant regarding an investigation into
alleged misconduct by complainant's mother-in-law. On September 11, 2006,
complainant was interviewed by two OIG Special Agents at the Texas City
Post Office. The Special Agents informed OIC1 after the interview that
complainant was belligerent and uncooperative during the interview.
As a result, OIC1 decided to terminate complainant for failure to
cooperate with the OIG investigation.
At some point, the Officer in Charge (OIC2) of the La Marque Post Office
learned that OIC1 planned on terminating complainant, and she informed
OIC1 that she would allow complainant to work for her. Shortly after
complainant began working for her, OIC2 learned that the OIG Special
Agents wanted to interview complainant again after inconsistencies
were found between complainant's testimony and the testimony of his
mother-in-law. On September 29, 2006, complainant was interviewed
by the Special Agents at the La Marque Post Office. OIC2 was present
for a portion of the interview at complainant's request. The Special
Agents again found complainant to be uncooperative during the interview.
Following the interview, OIC2's supervisor, the Postmaster of Operations
Management, ordered OIC2 to terminate complainant's employment.1
On November 16, 2006, complainant filed an EEO complaint alleging that
he was discriminated against on the basis of race (African American)
when, on September 29, 2006, he was terminated from his casual position.
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 23, 2007 and issued
a decision on August 2, 2007 finding no discrimination. Specifically,
the AJ found that complainant failed to establish that the agency's
legitimate, nondiscriminatory reason for terminating complainant was
a pretext for unlawful race 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 argues that the AJ erred in finding no
discrimination. Complainant argues that he was subjected to
discrimination and racial profiling by the OIG Special Agents and
management officials. Complainant further argues that agency officials
provided inconsistent testimony at the hearing. 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 a legitimate,
nondiscriminatory reason for terminating complainant. Agency officials
testified that complainant was terminated for refusing to cooperate with
an OIG investigation.
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 Although complainant testified that he was cooperative and that
the OIG Special Agents harassed him during the interviews, we note that
the AJ found that "the credible evidence convinced [him] that neither
[of the Special Agents] acted unprofessionally." We also note that the
agency's Employee and Labor Relations Manual states that "[e]mployees must
cooperate in any postal investigation, including [OIG] investigations."
ELM 17.14, � 665.3 (March 16, 2006). 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
towards complainant's race.
To the extent that complainant is alleging that he was subjected to
a hostile work environment, we find under the standards set forth in
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's
claim of hostile work environment must fail. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). A prima facie case of hostile work environment is precluded
based on our finding that complainant failed to establish that any of
the actions taken by the agency were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000).
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 It is unclear from the record whether complainant was terminated or
resigned after the second OIG interview. However, complainant alleged
that he was terminated in his formal complaint, the agency investigated
the claim as a termination claim, and neither party objected to this
characterization of complainant's claim during the hearing.
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0120073912
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073912