01A11973
07-16-2002
Alvin L. Steele, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alvin L. Steele v. United States Postal Service
01A11973
July 16, 2002
.
Alvin L. Steele,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11973
Agency No. 1G-753-0087-99
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Supervisor, Distribution Operations, EAS-16, at the agency's
Processing and Distribution Center, Dallas, Texas. Complainant sought
EEO counseling and subsequently filed a formal complaint on June 2,
1999, alleging that he was discriminated against on the bases of race
(Black) and sex (male) when, on April 9, 1999, the Manager, Distribution
Operations (MDO) (Black, male) disallowed complainant's sick leave time
for one week, and placed him on leave without pay.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision. In its FAD,
the agency concluded that complainant failed to establish a prima facie
of either race or sex discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the record indicates that MDO's
actions came after complainant submitted the proper documentation under
the Family and Medical Leave Act (FMLA), and he was treated differently
than another employee (C1) (Black) (female). Complainant also alleges on
appeal that he was unable to get an impartial investigation. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and its progeny, the Commission agrees with the
agency that complainant failed to establish a prima facie case of race
and sex discrimination.
Concerning complainant's allegations of race and sex discrimination,
he testified that C1 had notified a different manager that she would be
absent; left on annual leave, and upon her return changed it to FMLA sick
leave, which was not disapproved. The record reflects that C1 was not
similarly situated to complainant because MDO was not involved in C1's
leave; and that C1 initially submitted a leave form, while complainant's
documentation was not properly submitted. Additionally, it would appear
that MDO's actions were due to his inability to obtain information
from complainant concerning his absences. Complainant also alleged
that MDO's actions were due to a personal vendetta against complainant,
but did not attribute the vendetta to complainant's race or sex.
Notwithstanding complainant's assertion that on March 29, 1999,
he notified the agency that he would be absent due to illness, the
record does not document that this was done.<1> MDO testified that he
sent complainant FMLA paperwork; attempted several times to contact
complainant for documentation; and did not receive any return phone
calls from complainant. Further, MDO testified that at the time he
instructed payroll to discontinue putting in sick leave for complainant,
complainant had failed to comply with agency rules and regulations
governing attendance.
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of race and sex discrimination.
Also, based on our review of the record, we find that the investigation
was impartial. Therefore, the Commission finds that this contention on
appeal is without merit.
CONCLUSIONS
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 FAD.
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
July 16, 2002
Date
1 It is not controverted that complainant sought medical attention at
the agency's medical unit on March 26, 1999, which unit recommended that
he see his own doctor, and that he had hypertension.