01990788
04-14-2000
Cecil I. Holley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region), Agency.
Cecil I. Holley v. United States Postal Service
01990788
April 14, 2000
Cecil I. Holley, )
Complainant, )
) Appeal No. 01990788
v. ) Agency No. 4D-270-0011-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region), )
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 Commission accepts the appeal 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), sex (male) and age (DOB: 9/7/41) when he
was not assigned to "throw mail by scheme." For the following reasons,
the Commission affirms the FAD.
The record reveals that during the relevant time, complainant was employed
as a Distribution/Window Clerk at the agency's facility in Apex, North
Carolina. Believing the agency discriminated against him as referenced
above, complainant sought EEO counseling and subsequently filed a formal
complaint on January 26, 1998. 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 64 Fed. Reg. 37,644, 37,656-57 (1999)(to be codified at
29 C.F.R. � 1614.108(f)), the agency issued a final decision from which
complainant now appeals.
In its FAD, the agency found that complainant failed to establish a
prima facie case of discrimination on any of his alleged bases. Assuming
arguendo that he had met his prima facie burden, the agency articulated
a legitimate, nondiscriminatory reason why complainant was not permitted
to "throw mail by scheme," namely that he had specifically requested not
to be assigned that duty. The agency concluded that complainant failed
to proffer any evidence to establish that the agency's explanation was a
pretext for discrimination. On appeal, complainant argues that he never
asked not to be assigned scheme duty.<2> The agency requests that we
affirm the FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue), the Commission finds that complainant did
establish a prima facie case of discrimination on all of his alleged
bases because similarly situated employees outside of his protected
classes were assigned to "throw mail by scheme." However, the Commission
concludes that complainant failed to present evidence that the agency's
articulated reason for its action was a pretext for discrimination.
Complainant's bare assertion on appeal denying that he had originally
asked not to be assigned scheme duty is not supported by any evidence
in the record. Moreover, as soon as management became aware that he
wanted to "throw mail by scheme," they retrained him and assigned him to
rotating scheme duty. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
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).
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:
April 14, 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.
2 Complainant also raises an issue previously dismissed by the agency
in a Partial Acceptance/Partial Dismissal Letter dated April 9, 1998.
Although direct appeals of decisions partially dismissing a complaint are
no longer permissible under the regulations revised on November 9, 1999,
when the agency issued the Partial Dismissal with proper appeal rights,
complainant could have directly appealed to the Commission but failed
to do so. Accordingly, the Commission finds complainant's appeal of
the dismissed issue to be untimely, and we decline to review it.
The Commission further notes that during the investigation of the instant
complaint, complainant alleged that he was subject to retaliatory
harassment and to retaliatory discipline. Under the regulations
effective at that time, the EEO counselor properly informed complainant
that he would have to file a new complaint because he was raising new
issues. Since neither of these claims were accepted for investigation,
we decline to review them.