Daniel G. Shutt, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic), Agency.

Equal Employment Opportunity CommissionSep 17, 1999
01973063 (E.E.O.C. Sep. 17, 1999)

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