01a45314
02-27-2006
Billy J. Warren, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Billy J. Warren v. United States Postal Service
01A45314
February 27, 2006
.
Billy J. Warren,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45314
Agency No. 4E-800-0422-03
DECISION
Complainant initiated an appeal from a final decision, dated July 6,
2004, 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. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Clerk at the agency's Glenwood Springs, Colorado facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on May 23, 2003, alleging that he was discriminated against
on the basis of sex (male) when:
On January 21, 2003, complainant was removed from the position of acting
supervisor (204B).
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 decision, the agency concluded that complainant failed to identify
any similarly situated employees, not in his protected class (male),
who were treated any better than he was. Specifically, complainant's
duties as an acting supervisor (204B) were removed after complainant
was accused of sexually harassing employees under his supervision.
The agency found that agency officials determined that complainant was
not suitable to continue acting as a 204B supervisor because he was
a figure in several sexual harassment fact findings and also because
of a civil lawsuit filed by complainant against other employees of the
Glenwood Springs Post Office and their countersuit. Further, the agency
found that, consistent with agency policy, complainant was placed on
administrative leave, pending the outcome of the investigation into the
charges that he had sexually harassed a female employee. Accordingly,
the agency found that complainant did not establish that he was subjected
to discrimination on the basis of sex.
On appeal, complainant contends that he submitted a hearing request and
includes a copy of an executed hearing request form, bearing a facsimile
header date of March 26, 2004. The Commission observes that complainant
has not submitted any evidence that the hearing request he claims to
have sent, was actually received by either the agency or the Commission
within the necessary time frame. Furthermore, there is no persuasive
evidence showing that complainant sent the request or where he sent the
purported request for a hearing. Accordingly, we concur with the agency
that the agency properly issued its decision in this matter.
The Commission further concurs with the agency's determination that
complainant failed to establish a prima facie case of discrimination based
on sex. Specifically, we find that complainant has not identified any
other employees, not in his protected class, who were similarly accused
of sexual harassment who were not placed on administrative leave and
relieved of supervisory duties. 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 discrimination.
In reaching this conclusion, we note that the agency has a duty to
investigate allegations of sexual harassment and the record confirms that
the agency undertook corrective action to address specific allegations
of sexual harassment that employees presented to management. We find
that complainant has not established that the agency's actions were a
pretext to mask discrimination.
Therefore, we AFFIRM the agency's final decision finding no
discrimination.
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
February 27, 2006
__________________
Date