Alexander J. Dalonas, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Southwest), Agency.

Equal Employment Opportunity CommissionNov 9, 2000
01a05517 (E.E.O.C. Nov. 9, 2000)

01a05517

11-09-2000

Alexander J. Dalonas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southwest), Agency.


Alexander J. Dalonas v. United States Postal Service

01A05517

November 9, 2000

.

Alexander J. Dalonas,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Southwest),

Agency.

Appeal No. 01A05517

Agency No. 4G-780-2736-99

Hearing No. 360-AO-8033X

DECISION

Complainant timely initiated an appeal from the agency's final action

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. <1>

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleges he was discriminated against on the bases of race (Caucasian)

and national origin (Greek American), when: (1) on March 10, 1999,

he was subjected to street supervision; and (2) on May 3, and May 4,

1999, he was subjected to office and street supervision, and the agency

refused to give him documentation reflecting the supervision. For the

following reasons, the Commission AFFIRMS the agency's final action.

The record reveals that complainant, a Carrier Technician at the

agency's Coronado Station, El Paso, Texas facility, filed a formal EEO

complaint with the agency on June 17, 1999, 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).

The AJ issued a decision without a hearing, finding no discrimination.

The AJ concluded that complainant established a prima facie case of race

and national origin discrimination because complainant established that

similarly situated employees, not in his protected classes, were treated

differently than he was under similar circumstances.

The AJ further concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Complainant's Supervisor

averred that complainant's route was observed because prior analyses

indicated that there were some discrepancies between complainant's

workload and hours, and complainant's street time showed an increase

compared to the average street time. Furthermore, complainant's manager

averred that complainant's work performance was not up to the standard

of other carriers. Even on �light� days, when other carriers completed

their work in eight hours, complainant requested auxiliary help. In sum,

complainant's manager averred that complainant's performance was observed

in order to determine why complainant was unable to complete his route

in eight hours, and why he could not follow the set delivery route,

even after instructions to do so. Complainant's supervisor denied that

he refused complainant copies of paperwork generated by the performance

assessment.

The AJ found 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 that

complainant failed to provide any evidence from which a trier of fact

could conclude that the agency's reasons for its actions were a pretext

for discrimination.

On July 18, 2000, the agency issued a final action that implemented the

AJ's decision.

On appeal, complainant argues that his route takes longer to deliver

because his route has a higher mail volume than other carriers.

He disputes management's contention that he was not refused documentation

from the route inspection. Complainant also claims that he only delivered

the route out of sequence on one occasion.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. This regulation is patterned after the summary judgment procedures

set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary

Judgment is proper when "material facts are not in genuine dispute."

29 C.F.R. � 1614.109(g). Only a dispute over facts that are truly

material to the outcome of the case should preclude summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes

over facts that might affect the outcome of the suit under the governing

law, and not irrelevant or unnecessary disputes, will preclude the entry

of summary judgment). For example, when a complainant is unable to

set forth facts necessary to establish one essential element of a prima

facie case, a dispute over facts necessary to prove another element of

the case would not be material to the outcome. Celotex v. Catrett, 477

U.S. 317, 322-23 (1986). EEOC Management Directive 110 (MD-110), at 7-15

( November 9, 1999). The Commission will apply a de novo standard of

review when it reviews an AJ's decision to issue a decision without a

hearing pursuant to 29 C.F.R. � 1614.109(g). See EEOC MD-110, at 9-16.

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 complainant

failed to present any evidence that any of the agency's actions were

motivated by discriminatory animus toward complainant's race or national

origin. In addition, complainant failed to provide sufficient evidence

that the agency's reasons for its actions lacked credence. 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 action.

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

November 9, 2000

__________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.