01981697
12-10-1998
Dennis Balogh, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
Dennis Balogh v. United States Postal Service
01981697
December 10, 1998
Dennis Balogh, )
Appellant, )
)
v. ) Appeal No. 01981697
) Agency No. 4C-440-0171-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic), )
Agency. )
______________________________)
DECISION
On December 29, 1997, Dennis Balogh (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated December 3,
1997, concluding he had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. Appellant had alleged he had been discriminated against on the
bases of his race (white) and sex (male) when, on December 17 and 23,
1996, he had to call in and request overtime to finish his route while
others were granted overtime prior to leaving for the street. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
At the time the events at issue occurred, appellant was employed as a
Letter Carrier, PS-05, at the Noble/Shore Post Office in Cleveland, Ohio.
Appellant asserted that he was discriminated against on the two dates in
question because two black female Letter Carriers were granted overtime
prior to their leaving for the street, while he was required to call in
and, when he did so, was questioned harshly about his need for overtime.
The record indicates, however, that appellant was granted the overtime he
requested. The Station Manager denied discriminating against appellant.
He said he challenged appellant's need for overtime when he called in
because, in the past, appellant had extended his lunch break without
authorization. The supervisor explained that the two comparative
employees were granted overtime because, unlike appellant, they had
to case the mail on their own route and another route, which extended
their office time and meant they were late in leaving for the street.
Therefore, the overtime authorization was for the casing time and not
the street time. Appellant, on the other hand, only cased his own route
on the dates in question.
On February 14, 1997, appellant filed a formal EEO complaint, alleging
that the agency had discriminated against him as referenced above.
The agency accepted the complaint and conducted an investigation. At the
conclusion of the investigation, appellant initially requested a hearing,
but subsequently withdrew that request and asked for a final decision
based on the evidence of record. On December 3, 1997, the agency issued
its final decision finding no race or sex discrimination had occurred
in this matter. It is from this decision that appellant now appeals.
Appellant's allegation of discrimination constitutes a claim of disparate
treatment which is properly analyzed under the three-tiered analytical
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See also, Cooper v. Federal Reserve Bank of Richmond, 467
U.S. 867 (1984); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-256 (1981).
Applying this legal standard, the Commission finds that although appellant
may have established a prima facie case of race and/or sex discrimination
because it initially appears that two black female employees were
treated more favorably, this initial inference of discrimination was
successfully rebutted by the agency with its articulation of legitimate,
nondiscriminatory reasons for the actions taken. After a careful review
of the record, the Commission discerns no basis upon which to conclude
that appellant established, by a preponderance of the evidence, that
the agency's articulated reasons for its actions in this matter were
unbelievable or that its actions were more likely motivated by race
and/or sex discrimination.
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which concluded no race and/or sex
discrimination occurred in this matter.
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. � l6l4.604(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. 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:
Dec 10, 1998
_________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations