0120073278
10-04-2007
William G. Foley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William G. Foley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073278
Hearing No. 490-2006-00144X
Agency No. 4H-370-0088-05
DECISION
Complainant filed an appeal from the agency's June 19, 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq. For the following reasons, the Commission AFFIRMS
the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Letter Carrier at the agency's Bartlett Post Office facility
in Bartlett, Tennessee. On August 9, 2005, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of sex
(male) and age (56) when:
Between March and May 2005, complainant's supervisor: continually compared
complainant's performance with the performance of 20-year old carriers;
harassed and issued discipline to complainant for failing to perform to
his supervisor's standards; singled complainant out for harsh treatment;
continually told others (carriers) that she was going to force complainant
to retire by following him on routes; set complainant up for discipline;
tried to provoke complainant; and attempted to intimidate complainant.
Previously, the agency dismissed complainant's complaint for failure
to cooperate when complainant did not respond to the agency's request
for additional information. In William G. Foley v. United States Postal
Service, EEOC Appeal No. 01A60177 (March 6, 2006), the Commission reversed
the agency's dismissal and ordered the agency to process complainant's
complaint. 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 requested a hearing and the AJ held a hearing on April
18, 2007. Thereafter, the AJ issued a decision on May 25, 2007.
In his decision, the AJ found that complainant did not establish a
prima facie case of either sex or age discrimination. Specifically,
complainant failed to identify any similarly situated employees, not in
his protected classes (male and over 40 years of age) who were treated
differently than complainant was treated. On the contrary, the AJ
noted that complainant presented evidence that other male employees,
over 40 years of age, were treated better by the same supervisor (S1)
that complainant charged with age and sex discrimination. The AJ also
credited the testimony of S1, while finding that complainant's testimony
was inconsistent with respect to the dates of alleged discrimination
and his own actions. For example, the AJ noted that complainant claimed
that S1 retaliated against him after he sent a letter on May 21, 2005,
to the Postmaster General and others, exposing instances of fraud.
However, complainant's letter was sent after complainant contacted
an EEO Counselor and after complainant received written discipline
from S1. The AJ found that complainant was not able to establish that
discrimination occurred as alleged. 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.
On appeal, complainant claims that he was denied the opportunity to
present certain witnesses that would have established his prima facie
case of age discrimination.
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 or
she 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).
In the instant case, we find substantial evidence supports the AJ's
conclusion that no discrimination occurred. Specifically, we find that
complainant failed to identify any similarly situated employees not
in his protected classes, who received preferential treatment under
the same or similar circumstances. We note that complainant did not
raise any objection at the outset of the hearing regarding the witnesses
approved or rejected by the AJ. We concur with the AJ's observation
that complainant's letter of May 21, 2005, to the Postmaster General
did not allege age or sex discrimination and accordingly could not have
formed a basis for reprisal under either Title VII or ADEA. We thus
find no basis to disturb the AJ's findings or his determination that
discrimination did not occur.
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision finding 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
October 4, 2007
__________________
Date
2
0120073278
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073278