Galen L. Brown, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 29, 1999
01975872 (E.E.O.C. Oct. 29, 1999)

01975872

10-29-1999

Galen L. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Galen L. Brown v. United States Postal Service

01975872

October 29, 1999

Galen L. Brown, )

Appellant, )

) Appeal No. 01975872

v. ) Agency No. 1-I-681-1032-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint of unlawful

discrimination based on race (Black) and sex (male), in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e, et seq.

Appellant alleges he was discriminated against when on December 9, 1995,

he was reassigned to a lower- level position. 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 on August 6, 1995, appellant began employment as

a transitional clerk (pay level 4 position/automation) at the Topeka,

Kansas Post Office. In the Fall of 1995, appellant requested and was

granted a transfer to a different Tour to accommodate a scheduling

conflict with his football coaching. See Record of Investigation (ROI)

at 9. Because the transfer resulted in his working as a floor clerk,

appellant sought a pay increase commensurate with a level 5 position.

There was a delay in appellant securing this pay increase. Appellant

contends that he was told by a supervisor that the Plant Manager refused

to approve the increased pay level. The Postmaster testified that

appellant's pay increase was delayed because the personnel office had

failed to fill out a new Form 50, and that in fact the Plant Manager had

followed up with the Postmaster about the status when appellant raised

the matter. ROI at 11-12. Appellant eventually obtained the increase

as well as the backpay due as a result of the delay. However, within

several days thereafter, on December 9, 1995, appellant was reassigned

as a transitional mail processor in the automation unit, which returned

him to a pay level 4 position. See ROI at 3, 14.

Believing he was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a complaint on March 26, 1995. By

letter dated May 30, 1996, mailed to the agency's EEO Appeals Processing

Center in Chicago, Illinois, appellant requested a hearing before an EEOC

Administrative Judge (AJ). ROI at 76. By reply letter dated June 17,

1996, a Senior EEO Complaints Processing Specialist advised appellant that

his hearing request was premature because the agency investigation was not

yet completed, but that upon completion of the investigation, a copy of

the investigative file would be transmitted to appellant, together with

a notice of appeal rights. ROI at 74. Appellant received this letter

on June 21, 1996. ROI at 75. At the conclusion of the investigation,

the investigative file and notice of right to request a hearing before an

EEOC AJ was sent to appellant. The record reveals that appellant received

the file and notice of rights on October 8, 1996, but he did not respond.

Accordingly, the agency issued a final decision without a hearing.

The FAD concluded that appellant failed to establish a prima facie

case of race or sex discrimination because he presented no evidence

that similarly situated individuals not in his protected classes were

treated differently under similar circumstances. The FAD further

concluded that even assuming appellant had established a prima

facie case of discrimination, the agency had articulated legitimate,

non-discriminatory reasons for his reassignment which appellant had not

proven to be pretextual. Specifically, the Plant Manager (black, male)

attested that appellant was reassigned to a mail processor position

because of heavy overtime usage in the automation unit. He stated

"[t]he complement was sufficient at one time but there were people who

bid out and we needed to backfill." ROI at 9. The Postmaster (white,

male) similarly attested that appellant was reassigned due to a shortage

of employees in automation, high expected volumes of year-end mail,

and a decision to use three mail processors on the delivery bar code

sorting (DBCS) machine. ROI at 11-12. The Postmaster attested that

all transitional employees except one were assigned to automation during

the relevant time. ROI at 12.

On appeal, appellant contends that the agency failed to honor his

request for a hearing. Appellant also contends that the agency failed

to respond when he requested a copy of his 24-26 page complaint, which

he asserts was stolen out of his locker during the agency investigation.

The agency requests that we affirm its FAD.

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 establish a prima facie case of race or sex discrimination.

In order to establish a prima facie case of disparate treatment,

appellant must establish that (1) he is a member of a protected class;

(2) he was subjected to adverse treatment; and (3) a similarly situated

employee outside his protected class was treated more favorably, or other

evidence exists to permit an inference of disparate treatment if otherwise

unexplained. While appellant identified a co-worker (Caucasian, female)

who was not reassigned, she was not similarly situated to appellant

because she was qualified as a letter sorting machine (LSM) clerk, whereas

appellant was not. See ROI at 12. In order for comparative employees

to be considered similarly situated, all relevant aspects of appellant's

situation must be nearly identical to those of comparative employees.

See Tolar v. United States Postal Service, EEOC Appeal No. 01965083

(December 16, 1998) (citing O'Neil v. United States Postal Service,

EEOC Request No. 05910490 (July 23, 1991)). Moreover, appellant has

not adduced any other evidence which might support an inference of

discrimination.

The Commission further finds that even assuming appellant had established

a prima facie case of race or sex discrimination, he failed to present

evidence that more likely than not, the agency's articulated reasons

for its actions were a pretext for discrimination. In reaching this

conclusion, we note that the Plant Manager (black male) whom appellant

accuses of reassigning him for discriminatory reasons had in fact

several months earlier granted appellant's request to transfer to

a different Tour due to a scheduling conflict between his hours of

duty and coaching football. See ROI at 9. This undermines appellant's

allegation of discriminatory motive. Moreover, appellant himself asserts

that the pay dispute motivated his reassignment to the automation unit,

because the reassignment returned him to his original pay level within

days of his obtaining the pay increase that he sought as a result of

his Tour transfer. ROI at 6-7, 102. This refutes rather than supports

appellant's discrimination allegations, since the pay dispute constitutes

a non-discriminatory reason for appellant's reassignment. In addition,

the Postmaster testified that he and two other individuals, not the Plant

Manager, jointly made the decision to reassign appellant to automation.

ROI at 11. Accordingly, appellant has not demonstrated that the Plant

Manager's role, if any, in the pay matter evidences discriminatory animus

which motivated his reassignment.

Appellant also contends that management's articulated reason for

his reassignment is pretextual because the automation employees were

often overscheduled, resulting in some being sent home, and that at

least once right after his reassignment, he was assigned only six

hours of floor time. ROI at 58, 107. We find that this alone does

not render pretextual management's explanation for the reassignment.

Management provided legitimate reasons why it believed the reassignment

was appropriate to serve the needs of the facility during the holiday

season in light of the reduction in the number of automation employees.

Moreover, management points out that appellant had only been allowed

to transfer to a Tour I clerk position to accommodate his personal

schedule, ROI at 9-12, and it was not the position for which he was

hired. Notwithstanding appellant's evidence, he has not met his burden

to prove by a preponderance of the evidence that the real reason for his

reassignment was motivated by race or sex discrimination. See St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (it is not sufficient to

"disbelieve the employer; the fact finder must believe the plaintiff's

explanation of intentional discrimination") (emphasis in original).

With respect to appellant's contention that the agency failed to grant

him a hearing, the agency, as explained above, advised appellant that

his request was premature, and gave him an appropriate notice of rights

regarding the filing of a timely request, which he did not do.

Finally, appellant contends he was not provided with a replacement

copy of his complaint when he requested one. Allegations regarding

improper processing are appropriately raised with the director of the

agency's EEO office in the first instance, and there is no indication

that appellant raised this matter below. Moreover, appellant has not

identified any evidence or arguments he was unable to develop or put

forth as a result of being denied a replacement copy of his complaint, nor

has he identified any resulting prejudice. We note that the record of

investigation contains appellant's six-page handwritten formal complaint,

with three-page cover letter, outlining his evidence and arguments,

as well as his investigative affidavit. Additionally, the personnel

records referred to by appellant, including those with his hand-written

notations, appear to be included in the record of investigation.

Therefore, after a careful review of the record, including appellant'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 (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:

10/29/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations