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