01975359
09-09-1999
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas), Agency.
Torrice Brown,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast/Southwest Areas),
Agency.
Appeal No. 01975359
Agency No. 4-H-350-1406
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegations that the agency discriminated against him
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Appellant asserted that he was discriminated
against on the bases of race (Black) and reprisal (prior EEO activity),
when (1) on July 6, 1994, he was denied the opportunity to leave work
early, and, (2) on July 7-8, 1994, he was charged Annual Leave instead
of Act of God Leave. The Commission hereby accepts the appeal in
accordance with EEOC Order No. 960.001. For the reasons that follow,
the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was
employed as a Distribution Clerk at the post office in Dothan, Alabama.
Believing that he was the victim of discrimination, appellant sought EEO
counseling and, thereafter, filed a formal EEO complaint. The agency
accepted the complaint for investigation and complied with all of our
procedural and regulatory prerequisites. After the agency apprised
appellant of his right to an immediate decision or a hearing before an
EEOC Administrative Judge (AJ), appellant requested a final decision
without a hearing. Thereafter, the agency issued a FAD, dated May 28,
1997, finding no discrimination. It is from this agency decision that
appellant now appeals. On appeal, appellant asserts, among other things,
that he has not received certain training, and, that he believes that
management and the Inspection Service are working together to bring
about his removal from the agency.
The investigative record reveals that at approximately 7:00 a.m. on
July 6, 1994, appellant made a request to leave work early because
he believed that he would be stranded due to flooding in the area.
Appellant's supervisor (S1) denied the request, stating that he had to
let two of appellant's similarly situated (White) colleagues leave first.
S1 presented unrebutted testimony that the roads to these individuals'
homes were going to be closed soon, whereas the road to appellant's
home did not close until noon that day. Appellant got off of work at
8:00 a.m.. S1 further stated that he believed that appellant was joking
when he made the request to leave early. The record further reflects
that appellant received 16 hours of Act of God Leave during the week
in question, whereas the comparison employees received 6 and 8 hours of
Act of God Leave respectively.
Applying the legal standard outlined 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 the McDonnell Douglas standard to reprisal cases),
we find no basis to disturb the agency's decision. Appellant failed
to establish a prima facie case of retaliation discrimination in either
allegation because he failed to show that S1 was aware of his previous
EEO activity. While appellant established a prima facie case of race
discrimination with respect to allegation 1, he failed to show that
the reasons for S1's actions were pretextual. Regarding allegation 2,
appellant failed to establish a prima facie case of race discrimination
because he failed to show that a similarly situated comparison employee
was treated more favorably. Furthermore, appellant failed to present
any evidence of discriminatory animus on the part of S1.
After careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the FAD presented the relevant facts, and properly analyzed the
appropriate regulations, policies and laws. With respect to appellant's
contentions on appeal, there is no evidence that these issues were
raised prior to the instant appeal and they will not be addressed
in this decision. If appellant believes that these allegations are
based on discriminatory factors, he should initiate contact with an
EEO counselor. However, with regard to the instant matters before the
Commission, we discern no basis to disturb the agency's assessment of
the evidence presented. Accordingly, the FAD is AFFIRMED.
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:
September 9, 1999
______________ ____________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations