01a03691
08-28-2000
Anthony Gordon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Region), Agency.
Anthony Gordon v. United States Postal Service (Southeast Region)
01A03691
August 28, 2000
.
Anthony Gordon,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Region),
Agency.
Appeal No. 01A03691
Agency No. 4-H-390-0022-99
DECISION
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.<1> The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). Complainant alleged that he was discriminated
against on the bases of race (Black) and reprisal for prior protected
EEO activity when on October 7, 1998, he was issued a 14-day suspension
for failure to follow instructions not to delay delivery of any mail.
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a City Carrier, PS-5, at the agency's Jackson, Mississippi facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on July 30, 1999.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of either race discrimination or reprisal. In this
regard, the agency found that complainant presented insufficient evidence
that similarly situated persons not in complainant's protected group
were treated more favorably in similar circumstances. In addition,
the agency found that complained failed to establish a causal link
between his protected activity of writing to his Congressman and
his later suspension. Complainant makes no contentions on appeal.
The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D.Mass), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission agrees with the agency that complainant failed to
establish a prima facie case of either race discrimination or reprisal.
In reaching this conclusion, we note that White letter carriers were
also disciplined for unauthorized use of overtime, and that the agency
had no knowledge of complainant's writing to his Congressman to protest
the agency's treatment of Black employees.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that the suspension was issued because of complainant's failure to
follow instructions. In this regard, complainant had been specifically
instructed not to delay delivery of any of the mail when he called in to
say that he could not complete his route in the amount of time previously
authorized. Nevertheless, he returned to the facility without delivering
over 100 pieces of mail. Although complainant protested that he had
been given conflicting instructions � not to delay delivery of any of
the mail on his route but not authorized any additional time to complete
delivery �- record evidence reveals that the complainant had been able to
complete his route within the authorized time on several past occasions.
Thus, we agree with the agency's conclusion that complainant intentionally
delayed mail in an effort to get his route adjusted to a smaller route.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 28, 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.