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

Equal Employment Opportunity CommissionMar 29, 2000
01a00454 (E.E.O.C. Mar. 29, 2000)

01a00454

03-29-2000

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


Charles Van Meter, )

Complainant, )

) Appeal No. 01A00454

v. ) Agency No. 4H-350-0043-99

)

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., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 bases of race (White) and age (DOB: 9/21/38), when,

on October 2, 1998, his work hours and non-scheduled days were changed.

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

as a Supervisor, Distribution Operations (SDO) at the agency's Birmingham,

Alabama facility. Believing he was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on November 6, 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. Complainant initially requested a hearing before an EEOC AJ.

According to the agency's final decision, complainant later requested that

the AJ remand the case to the agency for an immediate final decision.

On September 21, 1999, the agency issued a final decision. In its

FAD, the agency concluded that complainant failed to establish that

the agency's reasons for its action were a pretext for race or age

discrimination. Specifically, the agency found that complainant's hours

were changed in order to accommodate a leave of absence complainant

had requested. The agency stated in its decision that there were no

other SDO's on complainant's tour who could work while complainant was

on leave. Therefore, the agency swapped complaint's hours and schedule

with another employee on a different tour.

On appeal, complainant contends that the Manager is not telling the

truth when he informed complainant that the change would only be for a

short time. He asserts that if the change was not for a long period

of time, then why did the agency implement the schedule change three

weeks prior to complainant's schedule leave. The agency requests that

we affirm its FAD.

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

411, U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)

(requiring a showing that age was a determinative factor, in adverse

action at issue), the Commission finds that complainant failed to

present evidence that would prove 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 failed to present

persuasive evidence that would prove the agency changed schedules in an

effort to force him to retire, or due to a discriminatory motive against

his race or age. Rather, complainant submits, on appeal, a note from

a co-worker who states that the Manager informed him that complainant's

schedule was changed because �he has too many buddies over there.�

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).

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 29, 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.