01A13007
07-19-2002
Roger L. Farley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Roger L. Farley v. United States Postal Service
01A13007
July 19, 2002
.
Roger L. Farley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A13007
Agency No. 1C-443-0043-97
Hearing No. 220-A0-5375X
DECISION
Complainant timely initiated an appeal from the agency's final order
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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that complainant, a Motor Vehicle Service Operator at
the agency's Main Post Office in Akron, Ohio, filed a formal EEO complaint
on July 24, 1997, alleging that the agency had discriminated against
him on the bases of race (White), sex (male), and age (DOB: 08/25/1945)
when he was disciplined.<1> At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge. Following a hearing,
the Administrative Judge issued a decision finding no discrimination.
The Administrative Judge concluded that complainant failed to establish
a prima facie case of discrimination on any of his alleged bases.
Specifically, the Administrative Judge found that complainant failed
to demonstrate that similarly situated employees outside of his
protected classes were treated differently under similar circumstances.
The agency's final order implemented the Administrative Judge's decision.
On appeal, complainant restates arguments previously made at the hearing
concerning whether or not he was similarly situated to: (1) an individual
who had a similar �dock plate� accident but was not disciplined; and/or
(2) female letter carriers who had similar accidents. In response,
the agency argues that the Administrative Judge correctly determined
that complainant failed to present evidence sufficient to support an
inference of discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the
Administrative Judge's findings of fact are supported by substantial
evidence in the record and that the Administrative Judge properly
determined that complainant failed to present sufficient evidence from
which an inference of discrimination could be drawn. In reaching this
conclusion, we find that complainant was not similarly situated to an
individual who had a �dock plate� accident four years prior to complainant
while under different supervision and who, unlike complainant, did not
have a lengthy accident record at the time of the �dock plate� accident.
We also find that complainant, whose job it was to operate motor vehicles
for the agency, was not similarly situated to letter carriers.
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 order.
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
July 19, 2002
__________________
Date
1 Specifically, complainant was issued a notice of removal for
unsatisfactory work performance, mainly due to several accidents.
Complainant filed a grievance through his union, and ultimately an
arbitrator found that complainant's discharge was not for good cause.
Complainant was reinstated with back pay.