01971865
01-29-1999
______________________________ Ray A. Ecklund, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region) Agency.
Ray A. Ecklund v. United States Postal Service
01971865
January 29, 1999
______________________________
Ray A. Ecklund, )
Appellant, )
)
v. )
) Appeal No. 01971865
William J. Henderson, ) Agency No. 4-G-760-1203-95
Postmaster General, ) Hearing No. 310-96-5283X
United States Postal Service, )
(S.E./S.W. Region) )
Agency. )
______________________________)
DECISION
On December 18, 1996, Ray A. Ecklund ("appellant") timely appealed a
final agency decision ("FAD"), dated November 13, 1996, concluding he
had not been discriminated against in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant had
alleged that the agency discriminated against him on the bases of his race
(Caucasian) and sex (male) when: (1) he was issued a letter of warning,
on April 6, 1995, for unauthorized overtime; (2) he was placed off the
clock, on April 13, 1995, for insubordination; and (3) he was suspended
seven days for the events of April 13, 1995. This appeal is accepted
in accordance with the provisions of EEOC Order No. 960.001.
The record reveals that, during the relevant time, appellant was employed
by the agency as a Letter Carrier in Haltom City, Texas. On April 6,
1995, appellant's supervisor ("SV") issued him a letter of warning for
failing to perform the duties of his position in a satisfactory manner.
The SV charged that appellant used forty minutes of unauthorized overtime
to perform duties not previously authorized. On April 13, 1995, appellant
approached the SV to inquire if he would be allowed to attend a light
duty meeting scheduled for that day. During the conversation, the SV
informed appellant that she was only approving thirty minutes of the
one hour and six minutes of overtime that appellant had requested for
that day. Appellant did not feel that the allotted time was sufficient
to complete his duties. He thereafter requested that the SV pull the
data from the previous Thursday to compare the amount of time he had
used to complete his route. Appellant testified that, after the SV
refused to pull the data, he requested that she come on his route to
determine the appropriate amount of time needed to complete his duties.
The SV testified that appellant demanded that she go out on his route,
but she informed him that she could not go out with him because she
had to visit her father-in-law, who was in the hospital having surgery.
Appellant responded that he did not give a damn about the surgery and
that she should not take her frustration out on him. The SV stated,
because she felt that appellant's behavior had become irrational and
threatening, she instructed him to clock off and leave the facility.
After some further argument, appellant left the facility. On April 28,
1995, the SV issued appellant a Notice of Suspension for seven days
relating to his insubordination on April 13, 1995.
Believing that he was the victim of discrimination, appellant sought EEO
counseling and, thereafter, filed a formal EEO complaint on June 30, 1995.
The agency accepted the complaint for investigation and complied with
all of our procedural and regulatory prerequisites. Subsequently,
appellant requested a hearing before an EEOC Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD),
on September 9, 1996, finding no discrimination. In her RD, the AJ
concluded that appellant failed to establish a prima facie case of
discrimination based on race or sex, in that he failed to show that any
comparable employee outside his protected group was treated differently
than him. The AJ nevertheless found that the agency had articulated
legitimate, nondiscriminatory reasons for its actions in this case,
namely that appellant used unauthorized overtime and was insubordinate
on April 13, 1995. Finally, the AJ concluded that appellant failed to
show that the agency's reasons for its actions amounted to a pretext
for discrimination. The agency's FAD adopted the AJ's RD. It is from
this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's RD sets forth the relevant facts and properly analyzes the
appropriate regulations, policies and laws. The Commission finds that
appellant failed to present evidence to demonstrate that circumstances
surrounding the discipline in question give rise to an inference of
race or sex discrimination. Therefore, after a thorough review of the
evidence of record, including arguments and evidence not specifically
addressed in this decision, the Commission discerns no basis to disturb
the AJ's finding of no discrimination. Nothing proffered by the appellant
on appeal differs significantly from the arguments raised before, and
given full consideration by, the AJ. Accordingly, it is the decision
of the Commission to AFFIRM the agency's final decision which adopted
the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
JAN 29, 1999
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations