0120070770
08-06-2008
Walter J. Slocum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Walter J. Slocum,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070770
Hearing No. 140-2004-00280X
Agency No. 4C-290-0147-03
DECISION
Complainant filed an appeal from an agency's final action dated October
23, 2006, finding no discrimination with regard to his complaint. In his
complaint, dated September 29, 2003, complainant alleged discrimination
based on age (over 40) and disability (combat wounds and perceived) when
on August 19, 2003, he was denied a lateral transfer to the agency's
Greater South Carolina District.
Initially, we note that at the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ however issued a decision finding no discrimination without a
hearing which was implemented by the agency in its previous final order.
Upon complainant's appeal, the Commission, in EEOC Appeal No. 01A53181
(June 29, 2006), finding the issuance of a decision without a hearing
improper, vacated the agency's final order and remanded the case back
to the agency. Accordingly, the AJ conducted a hearing on September
14, 2006, and on September 29, 2006, she issued a decision finding no
discrimination which was implemented by the agency in its final action
at issue.
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).
In this case, the AJ determined that, assuming arguendo that complainant
had established a prima facie case of discrimination, the agency
articulated legitimate, nondiscriminatory reasons for the alleged action.
The AJ noted that at the relevant time, complainant was a City Carrier,
PS-05, at the agency in Plymouth, Massachusetts. The record indicates
that complainant subsequently retired.
The AJ stated that a HR specialist at the Greater South Carolina
District reviewed complainant's transfer request of June 1, 2003, and
documented his attendance and work performance data in four key areas:
(1) attendance; (2) work safety; (3) recommendations of supervisors;
and (4) disciplinary records. After review, the HR determined that
complainant had a very poor commitment to attendance, given his low sick
leave balance, and had a poor work safety record with three reported
work accidents and four reported injuries in the last five years.
Based on this data, the HR recommended to two selecting officials
(S1 and S2) that complainant's application for transfer be denied.
On July 29, 2003, S1 and S2 accepted the HR's recommendation and denied
complainant's request. The AJ indicated that complainant subsequently
met with S2 on August 18, 2003, to reconsider his decision. However,
after reviewing the additional information, S2 decided not to reconsider
his previous denial of the transfer application and informed complainant
of this decision on August 19, 2003.
The AJ stated that she did not find credible complainant's testimony
that an identified agency official and S2 made blatantly ageist and
disability-related comments to him. The AJ also stated that she did not
find complainant's testimony to be credible; she found the demeanor of
both the official and S2 was credible when they denied making the alleged
comments; and she found complainant was not truthful in his answers to
the agency's questions in his request for reassignment. The AJ stated
that complainant failed to show by a preponderance of the evidence that
the agency's proffered reasons were pretextual.
Upon review, the Commission finds that the AJ's factual findings of no
discriminatory intent are supported by substantial evidence in the record.
It is noted that the Commission does not address in this decision whether
complainant is a qualified individual with a disability. It is also
noted that complainant has not claimed that he was denied a reasonable
accommodation.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
AFFIRMED because the AJ's decision is supported by substantial evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
8/6/08
__________________
Date
2
0120070770
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036