01973063
09-17-1999
Daniel G. Shutt, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.
Daniel G. Shutt, )
Appellant, )
) Appeal No. 01973063
v. ) Agency No. 4D-250-1076-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of sex (male) and age (DOB: 8/17/51), 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 (ADEA) of 1967, 29 U.S.C. �621
et seq. Appellant alleges he was discriminated against when on or about
April 12, 1996, he was not trained for the Origin Destination Information
System (ODIS), which was needed for a Data Collection Technician (DCT)
Relief position he was awarded 10 months earlier. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
During the relevant time, appellant was employed as a Clerk at the
agency's Lynchburg, VA facility. Appellant alleged that in September
1995, he applied for a an Ad-Hoc DCT Relief position, which had
been posted by the agency. The notice stated that only those with
Saturdays off would be considered. As appellant had Saturdays off,
and was the senior bidder, he alleged that he was awarded the position.
Appellant alleged that despite this, he never received the proper ODIS
training which would enable him to perform the duties of the position.
The record reveals that on October 17, 1995, appellant filed a grievance
in order that he may receive the ODIS training. According to mutual
agreement, the grievance was held in abeyance for training to be completed
in four months. However, appellant was only trained on some of the
position's systems, and he filed another grievance on February 9, 1996.
In the meantime, appellant testified that management used another
individual (Comparative)(female, age unknown) for the DCT Relief position.
Appellant testified that the Comparative had worked in a similar job
in the past, but that she was not more qualified than he was for the
position. Appellant also alleged that the comparative received �brush
up� training for the DCT position.
Appellant testified that he continued to request the training, but was
not afforded such. Instead, he alleged, the Comparative was used as
the DCT relief worker. The record reveals that appellant continued to
complain to the union and management by filing several more grievances.
On April 23, 1996, appellant filed a grievance which alleged that he was
being discriminated against on the basis of sex in that the comparative
was given training for the position, which enabled her to work the relief
position, whereas he was not. In that grievance, he cited April 12, 1996,
as the most recent date he was denied training. He alleged �disparity
in treatment� when he was denied the right to perform the duties of the
DCT Relief position. On April 23, 1996, appellant also contacted an
EEO Counselor alleging that he was denied training on April 12, 1996.
On June 10, 1996, he filed a formal complaint alleging that the agency
discriminated against him on the bases of sex and age when it denied
him training on April 12, 1996.
Testimony from the Officer in Charge (OIC)(male, DOB; 8/25/50), reveals
that the Ad-Hoc Data Collection technician position was posted as a
means to cut down on overtime. He testified that if he filled the relief
worker position with appellant, who worked on Saturdays as a Window relief
worker at the agency's Fort Hill Station, he would have to pay appellant's
replacement overtime pay. Furthermore, he testified that if he utilized
another individual for the DCT Relief worker who was outside of the
current permanent DCT's assigned work area, he would have violated the
Negotiated Agreement with the Union. The OIC testified that the decision
to post a DCT Relief position was a mistake, and he has since rescinded
the position, since it would require an overtime situation for the agency.
At the conclusion of the investigation, appellant was sent the
investigative file and the right to request a hearing before an EEOC
administrative judge (AJ). Appellant failed to respond, and on February
13, 1997, the agency issued a final decision. In its decision, the agency
dismissed appellant's allegation for failure to make timely contact
with an EEO Counselor. Specifically, the agency found that appellant
had made EEO contact on April 23, 1996, which was several months after
his initial denial of training in September 1995. In its decision, the
agency also found that appellant had failed to show that his allegation
was timely under the continuing violation rule. Specifically, the agency
found that each denial of training had a degree of permanence which would
trigger his duty to assert his rights. Furthermore, the agency found
that appellant's grievances are evidence of his �reasonable suspicion�
that he was being discriminated against.
Assuming appellant's EEO contact was timely made, the agency then
addressed the merits of appellant's complaint. Specifically, the
agency found that appellant had failed to establish a prima facie case
of discrimination on either bases in that he failed to show that the
comparative was similarly situated to himself. Assuming, arguendo,
that he had established an inference of discrimination, the agency found
that it had articulated a legitimate, nondiscriminatory reasons for
its actions, namely, that the position was rescinded when the agency
discovered that the use of any other employee other than the assigned
DCT clerk, would create the need for overtime. The agency also found
that appellant failed to show that the reasons for its actions were a
pretext for discrimination, citing the fact that the OIC was also a male,
and was a year older than appellant.
In support of his appeal, appellant states that he failed to request a
hearing before an EEOC AJ because he was �not in a comprehensive state�
at the time he received his investigative file. Moreover, he stated that
he had been through a personal hardship in his life, and did not realize
he had failed to exercise his right to request a hearing. In response
to appellant's appeal, the agency asks that we affirm the FAD.
As a preliminary matter, we find it necessary to address the agency's
procedural findings. EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides
that an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory or
within 45 days of the effective date of the personnel action. We note
that appellant's complaint cites only one allegation, that being that
he was denied training on April 12, 1996. As appellant contacted an EEO
Counselor on April 23, 1996, he was within the 45 day time requirement,
and therefore made timely EEO contact with respect to this allegation.
Turning to the merits of appellant's complaint, and after a careful
review of the record, based on McDonnell Douglas v. Green, 411 U.S. 792
(1973), the Commission agrees with the agency that appellant failed to
prove, by a preponderance of the evidence, that the agency's articulated
reasons for its actions were a pretext for sex or age discrimination.
Specifically, appellant has failed to prove that he was denied training
and that the position was rescinded for any other reason other than that
articulated by the agency, namely, that it would result in the need for
overtime. Although it appears that the Comparative was given �brush
up� training and performed the duties of the position for some time,
there is no indication that this resulted in her permanent placement into
the position. Moreover, appellant has failed to provide any evidence that
the agency's actions were motivated by a discriminatory animus against him
based on his sex or age, or that the agency's reasons lacked credibility.
In response to appellant's statement on appeal, we find that he failed
to articulate, with any specificity, the nature of his incapacitation
or harsdip which prevented him from timely requesting a hearing. As the
record reveals appellant was provided with the appropriate hearing rights,
but failed to timely request a hearing, we find no reason to remand this
matter for a hearing.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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 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:
9/17/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations