01a05870
11-21-2000
Robert E. Aparicio, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Robert E. Aparicio v. United States Postal Service
01A05870
November 21, 2000
.
Robert E. Aparicio,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Region),
Agency.
Appeal No. 01A05870
Agency No. 1F-941-0054-99
Hearing No. 370-99-2689X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning 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.<1>
Complainant alleges he was discriminated against on the basis of his race
(Hispanic) when on April 12, 1999, management informed him that he was
terminated. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a Clerk at the agency's Burlingame, California, facility.
A review of the record establishes that complainant's supervisor (S1;
African-American) had concerns about complainant's work performance
and reputed habit of taking extended breaks, and held a meeting with
complainant to discuss his concerns. S1 alleged that during the meeting
held on January 30, 1999, complainant became violent, used abusive and
racist language towards S1 and kicked the conference room door with
such force that it cracked.<2> See Investigative Report at 6. On April
12, 1999, S1 issued complainant a Notice of Removal (Notice) informing
him that his employment with the agency would be terminated on May 25,
1999, citing complainant's conduct on January 30, 1999. Believing he
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal EEO complaint with the agency on June 10,
1999.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The AJ found that there was no evidence to
support complainant's claim that the agency was motivated by his race
when it terminated him and thus, complainant failed to demonstrate a
prima facie case of discrimination. In so finding, the AJ noted that
complainant did not dispute that he engaged in the conduct alleged by S1
in the Notice. The AJ also noted that complainant's evidence alleging
disparate treatment failed to raise an inference of discrimination, as
none of the comparison employees cited by complainant were similarly
situated. The AJ further found that there was nothing in the record
which suggested that in spite of complainant's violent behavior, S1
was motivated by complainant's race when he terminated his behavior.
The agency's final decision implemented the AJ's decision. Complainant
makes no new contentions on appeal, and the agency requests that we
affirm its final decision.
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. We agree with the
AJ's finding that complainant failed to establish a prima facie case
of race discrimination. The record establishes that the comparison
employees cited by complainant were not similarly situated, and there
is no other evidence which raises an inference of discrimination. We
agree with the AJ that the sole reason for complainant's termination
was his abusive and racist behavior directed at S1 on January 30, 1999.
We thus 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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 21, 2000
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant has not disputed that he directed profanity and racially
insensitive comments towards S1 during the January 30, 1999 meeting,
although he contends that the breaking of the door was accidental.