Barry Craft, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionMar 22, 2000
01a00294 (E.E.O.C. Mar. 22, 2000)

01a00294

03-22-2000

Barry Craft, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.


Barry Craft, )

Complainant, )

) Appeal No. 01A00294

v. ) Agency No. 1H-351-0045-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Areas), )

Agency. )

____________________________________)

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, 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 basis of race

(White) when: (1) on April 4, 1997, he was instructed not to work overtime

without consent; (2) on April 14, 1997, his lunch and break schedules

were changed; and (3) he was given a pre-disciplinary discussion.

For the following reasons, the agency's final decision is AFFIRMED.

The record reveals that during the relevant time, complainant was employed

as a Mailhandler at the agency's General Mail Facility, Birmingham,

Alabama facility. Believing he was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on September 17, 1997. 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 initially requested a hearing. On March 11,

1999, complainant rescinded his hearing request, and requested that the

agency issued a final decision.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of race discrimination in that he failed to provide

evidence that similarly situated individuals not in his protected class

were treated more favorably than he was under similar circumstances.

The agency also found that it articulated legitimate, nondiscriminatory

reasons for its actions. Specifically, the agency maintained that

complainant was instructed not to work overtime because he was habitually

taking unauthorized overtime. Complainant's supervisor also testified

that all Mailhandler's had their lunch and break schedules changed due

to the agency's desire to stagger breaks so Mailhandler were available

throughout the day. Finally, complainant's supervisor testified that

she issued the official discussion because complainant, contrary to

instructions issued on April 4, 1997, worked unauthorized overtime on

April 4, 7, 8 and 9, 1997.

On appeal, complainant contends that the agency did not conduct a proper

investigation. The agency requests that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411,

U.S. 792 (1973), the Commission finds that complainant failed to present

evidence that proved more likely than not, the agency's articulated

reasons for its actions were a pretext for discrimination. In reaching

this conclusion, we note that complainant presented insufficient evidence

that race was the reason for his overtime instructions, change in break

schedule, or official discussion. The record reveals that individuals

outside of complainant's class were issued discipline, and subjected to

changes in their break schedule. Complainant failed to prove that the

agency's reason for denying him overtime was due to his race, and not

because he consistently worked unauthorized overtime.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, and 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).

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:

March 22, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

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.