Leron Williams, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 1, 2007
0120061783 (E.E.O.C. May. 1, 2007)

0120061783

05-01-2007

Leron Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Leron Williams,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200617831

Hearing No. 310A50043X

Agency No. 4G760006704

DECISION

On January 19, 2006, complainant filed an appeal from the agency's

December 15, 2005, 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.

ISSUES PRESENTED

Whether complainant was discriminated against on the basis of his race

(African American), when on December 10, 2003, he was issued a notice

of removal effective January 3, 2004.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a City Letter Carrier at the agency's Euless Post Office facility

in Euless, Texas. On November 18, 2003, he approached his supervisor

(supervisor-1)(Hispanic) to dispute the time that the supervisor had

allowed him to cover his route that day. The conversation became loud

and attracted the attention of a union steward (Caucasian) and another

supervisor (supervisor-2)(Ocean Pacific Islander). The union steward

told supervisor-2 that the matter was under control. When supervisor-2

returned, he heard supervisor-1 ask complainant why he had "bumped

him." Witnesses indicated that complainant reacted aggressively and got

into a boxing stance with his fist pointed toward supervisor-1's face

and indicated that if he bumped him he would know. Complainant continued

yelling at supervisor-1; therefore, supevisor-2 stepped in between them.

Complainant was ultimately sent to the office. After a discussion

with supervisor-2, complainant returned to the floor. He then sought

out supervisor-1 and continued yelling at him and called him "stupid."

Complainant then went to make his deliveries. Later, he was given a

notice of suspension six hours later and; subsequently, he was issued

a notice of removal. Complainant filed the EEO complaint regarding the

matter on March 25, 2004.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing and the AJ held a hearing on November 18, 2005

and issued a decision on December 12, 2005. The agency issued a final

order adopting the AJ's finding that complainant failed to prove that

he was subjected to discrimination as alleged. Specifically, the AJ

indicated that it was complainant's burden to either identify employees

outside of his protected category who engaged in similar conduct or to

identify other evidence that created an inference of discrimination.

As comparative evidence, complainant indicated that a fellow employee

(White) was often loud with management and coworkers. Complainant

maintained that this employee had never been issued a notice of removal.

The AJ found that this coworker was not similarly situated as there was

no evidence that supervisor-2 was involved and more importantly, there

was no evidence that the employee's behavior, unlike complainant's,

went beyond words and had become physically threatening.

Complainant also argued that minorities were more harshly disciplined.

The AJ found that the agency had persuasively argued that these

instances were not described to the point where a prima facie case could

be established. The AJ did find, however, that complainant had raised

an inference of race discrimination regarding supevisor-2's use of the

words "brothers" and "jive." Notwithstanding, the AJ found that even

if complainant established a prima facie case of race discrimination,

the agency had articulated legitimate, nondiscriminatory reasons

for its actions, namely that complainant was issued the notice of

removal because he had engaged in aggressive behavior and had bumped

and intimated supervisor-1. The AJ found that complainant failed to

show that the agency's reason was pretext for discrimination. The AJ

also noted that it was significant that complainant had been an amateur

boxer and that his behavior during the confrontation was consistent with

bobbing and weaving.

CONTENTIONS ON APPEAL

On appeal, complainant contends that management made inconsistent

statements about the event regarding whether supervisor-1 felt physically

threatened. Complainant also contends that there was prolific evidence

presented at the hearing regarding the disparate treatment of minorities

in the office. He maintains that black employees are disciplined more

harshly than white employees. Complainant believes the AJ erred when

he did not fully consider testimony regarding these facts.

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). 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). 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); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

CONCLUSION

Based on a thorough review of the record and the contentions on

appeal, including those not specifically addressed herein, we find that

complainant failed to show that the agency's legitimate nondiscriminatory

reason for issuing him a notice of removal was pretext for discrimination.

The record clearly shows that complainant bumped and physically threatened

a supervisor. Further, regarding complainant's contentions on appeal, we

find that there is no evidence in the record which supports his argument

that the AJ did not fully consider all of the testimony. The record

indicates that the agency has a zero tolerance policy for violence and

complainant was disciplined because he bumped and physically threatened

a supervisor. Complainant did not present any evidence of coworkers, not

of his race, who had behaved in the same manner, but were not similarly

disciplined. Thus, the Commission does not find that discriminatory

animus was involved in this case. Accordingly, we find that there was

substantial evidence to support a finding of no discrimination.

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

____5/1/07_______________

Date

1 Due to a new data system, this case has been redesignated with the

above-referenced appeal number.

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0120061783

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120061783