01985008
04-13-2001
Kelvis T. Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Midwest Area), Agency.
Kelvis T. Johnson v. United States Postal Service
01985008
April 13, 2001
.
Kelvis T. Johnson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Midwest Area),
Agency.
Appeal No. 01985008
Agency No. 4I530111794
Hearing No. 260-98-7004X
DECISION
Kelvis T. Johnson (complainant) timely initiated an appeal from the
agency's final decision 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the bases of race (Black) and disability
(disabled veteran, back problem, stress, inability to sleep) when:
on April 29, 1994, he was placed in a nonduty pay status and;
on June 25, 1994, he was removed for engaging in unacceptable conduct.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a Part-Time Flexible (PTF)
Distribution Clerk at the agency's Menomonee, Wisconsin facility,
filed a formal EEO complaint with the agency on September 16, 1994,
alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ concluded that complainant failed to establish that he was an
individual with a disability as defined by the Rehabilitation Act.<1>
Specifically, the AJ found that complainant failed to establish that he
has an impairment that limits one or more of his major life activities.
The AJ also noted that the agency did not regard complainant as having
such an impairment and that complainant did not have a record of such
an impairment.
The AJ then concluded that complainant established a prima facie case
of race discrimination because he was terminated whereas the Caucasian
employee with whom he had an altercation was not. The AJ also noted
that complainant's testimony indicated that he was treated differently
in other ways from non-Black employees.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
asserted that complainant was initially placed in a nonduty pay status
and subsequently terminated due to an altercation he had with a Caucasian
employee (CW) on April 19, 1994. While both employees were temporary
placed in a nonduty pay status during the investigation into the
incident, only complainant was subsequently terminated because he was
the aggressor and, unlike CW, refused to stop the altercation. The AJ
also found that complainant was not treated differently than Caucasian
employees in general, noting that he was giving more opportunities than
anyone else to learn job assignments and that all PTF clerks performed
the same duties as complainant.
The AJ concluded that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found credible the
testimony that complainant's behavior on April 19, 1994, was aggressive
and made other employees fearful. The AJ noted that complainant quickly
became extremely angry and invited CW to go outside the building to
fight, whereas CW told complainant that they should both calm down to
avoid losing their jobs. The AJ found that CW called the supervisor
in an attempt to stop complainant's threats and left the building to
prevent fighting. Notwithstanding complainant's claim that the way he
was treated previous to the April 1994 incident is evidence of pretext
in that he was given less desirable duties than non-Black clerks, and
that co-workers harassed him about his clothes and music, the AJ found
that there is no evidence corroborating complainant's version of events.
The AJ concluded that complainant did not establish race discrimination by
a preponderance of the evidence. The agency's final decision implemented
the AJ's decision.
On appeal, complainant essentially reiterates arguments made at the
hearing. He notes that CW was the aggressor on April 19, 1994, and
that CW has a history of foul language and aggressive behavior towards
co-workers. He notes that CW nonetheless received the lesser punishment
of suspension, whereas he was terminated. The agency requests that we
affirm its final decision.
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).
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 note that even assuming,
for purposes of our analysis, that complainant is an individual with a
disability, he failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward his disability. Moreover,
while complainant established a prima facie case of race discrimination
in regard to his termination, he failed to establish that he was subjected
to race discrimination by a preponderance of the evidence.
In so finding, we note that the AJ's determination that complainant was
terminated due to the agency's belief that he was the aggressor in an
altercation with CW is supported by substantial evidence. Two witnesses
testified that the investigation into the altercation revealed that
complainant's behavior was far more aggressive than CW's. Co-workers
who witnessed the altercation noted that CW attempted to halt the
altercation after initially making a comment that made complainant angry.
Witnesses noted that during the altercation CW stated that both he
and complainant should go back to work to avoid losing their jobs, and
that CW called a supervisor and eventually left the building to avoid
complainant. The agency asserted that because complainant's behavior
was more aggressive, he was terminated, while CW was only suspended.
Although complainant attempted to establish pretext by describing prior
allegedly discriminatory treatment at the hands of the agency and by
arguing that CW was the aggressor, the evidence he offered does not
establish that he was subjected to race or disability discrimination
by a preponderance of the evidence. We 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 agency's final decision.
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
April 13, 2001
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.