01973220
09-14-1999
Dennis F. Wieczorek, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes/Mid-West Areas), Agency.
Dennis F. Wieczorek, )
Appellant, )
) Appeal No. 01973220
v. ) Agency No. 4J-481-1066-95
) 4J-481-1011-95
William J. Henderson, ) Hearing No. 230-96-4044X
Postmaster General, ) 230-96-4045X
United States Postal Service )
(Great Lakes/Mid-West Areas), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (White) and age (DOB:
4/28/56), 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.
Appellant alleges he was discriminated against when: (1) on September 6,
1994, he received a letter denying his merit appeal; and (2) on January
5, 1995, he learned his merit appeal was denied. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant, a Station Manager, Customer Services,
at the agency's Greenmead Station, Livonia, Michigan, filed two formal
EEO complaints with the agency on November 14, 1994, and March 10,
1995, alleging that the agency had discriminated against him as
referenced above. At the conclusion of the 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.
In his decision, the AJ found that on December 1, 1993, appellant received
a merit evaluation from his supervisor, the Postmaster (Caucasian),
with a rating of �satisfactory�, instead of �good� or �very good�.
As reason for the rating, the Postmaster reported that appellant had
mismanaged volume counts at the facility.
Instead, appellant alleged that he was rated �satisfactory� due to a
conversation which occurred during a meeting on May 14, 1993 between
himself, the Manager of Post Office Operations (Black) and the District
Manager (Black).<1> Specifically, appellant alleged that during this
conversation, the District Manager reportedly yelled at appellant and
said words to the effect of, �do you think I'm a stupid Black woman that
doesn't know how to think for herself� and �you're in trouble mister,
I'm calling your Postmaster.� Appellant testified that this conversation
was the reason for the �satisfactory� rating.
On December 10, 1993, appellant appealed the merit evaluation to the
Postmaster, and requested a meeting. On April 22, 1994, appellant
and his representative met with the Postmaster to discuss the rating.
During that conversation, appellant alleged that the Postmaster then
stated that it would not do much for him to overturn the rating since
he was retiring soon, and the change would be regarded as the �good ole
boy syndrome�, and would be overturned by the Manager of Post Office
Operations. Accordingly, the Postmaster declined to change the rating,
and retired soon after.
On May 3, 1994, appellant then appealed the rating to the Manager of
Post Office Operations. From June to September 6, 1994, appellant was
detailed to a position at the Muskegon, MI facility. In appellant's
absence, the Manager of Post Office Operations detailed an individual
(Black) into appellant's position.
On September 2, 1994, the Manager of Post Office Operations responded to
appellant's appeal. In his response, he remarked that upon review of
the material submitted by appellant and the Postmaster, he determined
that appellant had failed in his responsibility to ascertain accurate
mail volume recordings. Accordingly, he denied appellant's appeal.
Thereafter, on October 6, 1994, the Area Vice President of the National
Association of Postal Supervisors sent a letter to the District Manager
requesting a review of appellant's merit evaluation. On November 2, 1994,
the District Manager responded by stating that according to the EL-328
Handbook, the merit evaluation appeal rests with the Manager of Post
Office Operation. She further advised that she concurred with the Manager
of Post Office Operation's decision which denied appellant's appeal.
The AJ noted in his decision that appellant does not argue that the
actions of the Postmaster in completing the merit evaluation were
discriminatory. Rather, appellant alleged that the Manager of Post
Office Operations and the District Manager coerced the Postmaster into
giving appellant a �satisfactory� evaluation because of the incident on
May 14, 1993. As such, according to appellant, the discriminatory actions
were the denial of appeals by the District Manager and the Manager of Post
Office Operations. The AJ also took notice of the fact that at the time
of the hearing, both the Postmaster and the District Manager were retired,
and therefore chose not to make themselves available for the hearing.<2>
In his decision, the AJ found that appellant failed to establish a
prima facie case of discrimination on the bases of race because he
failed to demonstrate that similarly situated employees not in his
protected class were treated differently under similar circumstances.
The AJ also found that appellant failed to establish a prima facie case
of discrimination on the basis of age, in that at the time of the action
giving rise to the complaint, appellant was 38 years old, and thus,
not in the protected age group.
Furthermore, the AJ found that appellant failed to present any other
evidence that he was treated differently because of his race. Instead,
the evidence presented in the record only showed that the Manager of Post
Office Operations was involved in upgrading the merit evaluations of two
similarly situated individuals who were in appellant's protected class.
Moreover, other than appellant's assertions, he failed to present evidence
that the District Manager was in a position to retaliate against appellant
because of the May 14, 1993 meeting. Although the evidence presented
did indicate that the District Manager was upset with appellant, there
was no evidence that she coerced the Postmaster into rating appellant
�satisfactory�. Furthermore, there was no evidence that the District
Manager over-ruled the Manager of Post Office Operations' position, or
any other subordinate employee, to deny a merit appeal of any employee
outside of appellant's protected group.
As such, the AJ then concluded that the agency articulated a legitimate,
nondiscriminatory reason for its action. Furthermore, the AJ found
that appellant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
On January 31, 1997, the agency issued a final decision adopting the
AJ's RD. On appeal, appellant restates arguments previously made at the
hearing. In addition, appellant contends that the AJ erred when he did
not compel the agency to require the District Manager to testify at the
hearing and did not levy sanctions against the agency. Specifically,
appellant argued that although the District Manager had retired from
agency employment at the time of the hearing, she still contracted with
the agency as a consultant. As such, appellant argued that the agency's
leverage in requiring her to testify was her contractual relationship,
and that she should have been required to appear at the hearing.
Appellant also argued that the agency failed to make a finding as to
his age discrimination claim.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to present
sufficient evidence that any of the agency's actions were motivated by
discriminatory animus toward appellant's race.
With respect to appellant's contention that the agency did not address
his age discrimination claim, we find, as did the AJ, that as appellant
was not in the protected class at the time of the adverse action, he
failed to establish a prima facie case of age discrimination.
In regards to appellant's remaining contentions, we note that the issue
presented in this case is whether the agency discriminatorily denied
appellant's merit evaluation. Here, the documentary and testimonial
evidence of record overwhelmingly supports the agency's position that
the final authority with respect to the merit evaluation rested with the
Manager of Post Office Operations, not the District Manager. In fact,
the EL-328 Handbook states so specifically. Therefore, we disagree
with appellant's contention on appeal that an adverse inference should
be drawn by the agency's failure to require the District Manager's
testimony at the hearing. The only relevant testimony she could have
provided is whether she wrongfully declined to renew appellant's merit
appeal, a point which is which is not disputed by the evidence of record.
Furthermore, we find that the most relevant testimony was that of
the Manager of Post Office Operations wherein he testified that he
concurred with the Postmaster's rating due to the inflated volume
counts at appellant's facility. Moreover, he denied ever instructing
the Postmaster to issue a specific rating to appellant, or hearing such
threats from the District Manager. Since appellant failed to present
any evidence which would contradict this testimony, we find that he
failed to show that more likely than not, the agency's reasons for its
actions were a pretext for discrimination.
In sum, we find that appellant failed to prove, by a preponderance of the
evidence that he was discriminated against on the bases of age or race.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, and 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:
9/14/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Appellant testified
that the meeting had been called due to appellant's
concerns regarding the media's handling of a
shooting by a postal worker which occurred at the
facility on May 6, 1993. During that attack, the
postal worker, who was appellant's wife's first
cousin, wounded three individuals and mortally
wounded another, before taking his own life.
As a result of the stress brought on by this
incident, appellant requested a meeting so that
he could relay the facts as he knew them.
2However, the District Manager did provide an affidavit during the
investigation. Therein, she denied discriminating against appellant and
testified that she did not review the merit evaluation appeal since the
Manager of Post Office Operations was the final authority on the matter.