Charles S. Schott, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas) Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01975504 (E.E.O.C. Sep. 7, 1999)

01975504

09-07-1999

Charles S. Schott, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas) Agency.


Charles S. Schott, )

Appellant, )

)

v. ) Appeal No. 01975504

) Agency No. 4G-752-1161-95

William J. Henderson, ) Hearing No. 310-96-5550X

Postmaster General, )

United States Postal Service, )

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

Agency. )

)

DECISION

Appellant timely initiated an appeal from the final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the bases of race (Caucasian), reprisal

(prior EEO activity), and age (D.O.B: 11/3/46), in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et

seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. � 621 et seq. In his complaint, appellant alleged

that the agency discriminated against him when he was terminated as a

probationary part-time flexible (PTF) city carrier at the Richardson,

Texas Post Office. This appeal is accepted by the Commission in

accordance with EEOC Order No. 960.001. For the following reasons,

the agency's final decision is AFFIRMED.

Following an investigation, appellant requested a hearing before an

Equal Employment Opportunity Commission (EEOC) administrative judge

(AJ). Following a hearing, the AJ issued a Recommended Decision (RD),

finding no discrimination. On June 11, 1997, the agency issued a final

decision, adopting the AJ's findings of no discrimination. It is from

this decision that appellant now appeals.

The AJ concluded that appellant failed to establish prima facie cases

of reprisal, race and age discrimination. Regarding reprisal, the

AJ found that there was no inference of a nexus between appellant's

prior EEO activity in 1995 and his termination, effective February 2,

1996. With respect to race and age discrimination, appellant did not

provide any evidence that similarly situated probationary employees,

outside of his protective classes, had similar performance problems

and were treated differently under similar circumstances when he was

discharged. Assuming that appellant had established prima facie cases

of reprisal, race and age discrimination, the AJ concluded that the

agency articulated legitimate nondiscriminatory reasons for appellant's

discharge. Appellant was discharged because he failed to satisfactorily

perform the duties of his position. Furthermore, appellant received

the same initial training as all other PTF carriers, and he was given

feedback and instructions, as well as additional training. Additionally,

appellant was hostile towards instruction, and his work did not improve.

The AJ found that appellant failed to establish that the agency's

articulated reasons were pretextual. Appellant did not provide any

evidence that he was able to perform the duties of his position.

Also, appellant failed to show that he received less training or was

held to stricter standards than other probationary PTF employees.

On appeal, in addition to restating arguments previously made at the

hearing, appellant contends that he was subjected to hostile work

environment harassment when several supervisors openly demeaned him

on the work room floor. The Commission finds that this hostile work

environment issue is a new allegation, and that appellant can not raise

it for the first time on appeal. Appellant is advised that if he wishes

to pursue, through the EEO process, this additional allegation, he must

contact an EEO counselor within 15 days after he receives this decision.

The Commission advises the agency if appellant seeks EEO counseling

regarding this new allegation within the above 15 day period, the date

appellant filed the appeal statement in which he raised this allegation

shall be deemed the date of initial EEO contact (i.e. August 5, 1997),

unless he previously contacted a counselor regarding this matter, in

which case the earlier date shall serve as the EEO counselor contact date.

Cf. Qatasha v. Navy, EEOC Request No. 05970201 (January 16, 1998).

After a careful review of the entire record, including arguments and

evidence not specifically addressed in this decision, the Commission

finds that the AJ's RD sets forth the relevant facts, and properly

analyzes the appropriate regulations, policies, and laws applicable to

appellant's complaint. Therefore, the Commission discerns no basis to

disturb the AJ's findings of no discrimination. Accordingly, it is the

decision of the Equal Employment Opportunity Commission to AFFIRM the

agency's final decision finding no discrimination.

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. � 1614.604(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. 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 (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 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:

9/07/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations