01a00299
02-08-2000
Arthur Alford, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-West Areas), Agency.
Arthur Alford, )
Complainant, )
)
v. ) Appeal No. 01A00299
) Agency No.4J-604-0120-97
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Great Lakes/Mid-West Areas), )
Agency. )
____________________________________)
DECISION
On October 8, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq. <1> In his complaint,
complainant alleged he was subjected to discrimination on the basis of
race (Black) and physical disability (sciatica) when: (1) the agency
refused to place him in the Joint USPS/DOL Rehabilitation Program; (2)
on January 20, 1997, he was denied the opportunity to work overtime; and
(3) on February 17, 1997, he was denied the opportunity to work overtime.
The appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that on March 31, 1997, complainant contacted an EEO
Counselor alleging discrimination as referenced above. He thereafter
filed a formal EEO complaint on August 7, 1998. On October 23, 1998,
the agency accepted for investigation complainant's claim that he was
discriminatorily denied overtime work on February 17, 1997.
In his affidavit, complainant averred that on January 16, 1997,
his Supervisor announced an overtime opportunity for October 20,
1997. Those who volunteered, however, were required to �carry mail.�
Complainant signed his name on the volunteer list, but was not selected
to work. Thereafter, on February 12 or 13th, the supervisor again
announced an overtime opportunity. The supervisor stated, however,
that all volunteers needed to be able to work eight hours per day.
Despite his medical limitations which restricted him to working only
four hours per day, complainant volunteered for the overtime work.
He was not selected, and subsequently contacted an EEO Counselor.
In his affidavit and brief on appeal, complainant also provides
documentation relating to an earlier charge of discrimination from
the 1980's, as well as Office of Worker's Compensation documents from
the early 90's. He states in his affidavit that the agency denied
him placement into the Joint USPS/DOL Rehabilitation Program (�Joint
Program�) on January 27, 1990. As such, he claims he is not receiving
the appropriate amount of compensation for his loss of earnings due to
an on the job injury.
On September 7, 1999, the agency issued a final decision. The final
decision found that complainant failed to make timely EEO contact with
respect to his claim that he was denied placement in to the Joint Program,
and when he was denied overtime opportunity on January 20, 1997.
As for complainant's third claim, the agency found that complainant
failed to show that he was a disabled individual in that he failed
to show how his sciatica substantially limited a major life activity.
Assuming complainant established an inference of discrimination, the
agency found that it had articulated a legitimate, nondiscriminatory
reason for not selecting him for overtime. Specifically, the Customer
Services Supervisor averred in his affidavit that the overtime work
to be performed on that date was casing mail, and therefore out of
complainant's medical restrictions. The agency then found complainant
failed to establish that the agency's reasons for its actions were a
pretext for discrimination. This appeal followed.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Ball v. United States Postal Service,
EEOC Request No. 05880247 (July 6, 1988). Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that complainant initiated contact with
an EEO counselor on March 31, 1999. As to complainant's first claim,
he failed to indicate a specific date that he was denied placement
into the Joint Program. However, in his affidavit, he testified that
on January 20, 1990, he was denied placement into the program. As this
event occurred significantly more than 45 days from the date complainant
contacted an EEO Counselor, we agree with the agency's dismissal of this
claim.
As to complainant's second claim, that he was denied an overtime
opportunity on January 20, 1997, we also agree with the agency that
complainant failed to make timely EEO contact following this event.
After a careful review of the record as well as complainant's lengthy
brief on appeal, we find he failed to provide sufficiently persuasive
evidence or argument why we should extend the time requirements in
this case.
Complainant's final claim is that he was denied an overtime opportunity
on February 17, 1997. After a careful review of the record, based on
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),
the Commission agrees with the agency that complainant failed to
establish that the agency's reason for its actions were a pretext for
discrimination. In reaching this conclusion, we note that complainant's
supervisor testified he believed complainant was restricted from working
over four hours per day, and could not case or carry mail. Indeed, the
record reveals that complainant is restricted from working over four hours
per day. The record also reveals that the overtime work was from 8:00
a.m. until 4:00 p.m.. As his restrictions were inconsistent with the
overtime opportunity, he was not one of the two individuals selected.
Accordingly, the Commission finds that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for disability discrimination.
As for his claim of race discrimination, we agree with the agency that
complainant failed to establish a prima facie case of race discrimination
in that he failed to demonstrated that similarly situated employees
not in his protected classes were treated differently than he was under
similar circumstances. Although complainant cited two individuals who
were treated more favorably than he, complainant failed to show that these
individuals were selected for the overtime work. Complainant failed to
prove, by a preponderance of the evidence that the agency's reasons for
its actions were a pretext for race discrimination.
Accordingly, the Commission AFFIRMS the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 8, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
1On 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.