George A. Randall, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01a03433 (E.E.O.C. Aug. 28, 2000)

01a03433

08-28-2000

George A. Randall, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


George A. Randall v. United States Postal Service

01A03433

August 28, 2000

.

George A. Randall,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03433

Agency No. 4K200023298

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

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.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). Complainant alleged that he was

discriminated against on the bases of race (Caucasian) and age (d.o.b.,

11/29/54) when, on July 13, 1998, complainant discovered that his request

to use sick leave during his family medical leave (FMLA) was changed to

annual, whereas others had been granted sick leave for the same time.<2>

The record reveals that during the relevant time, complainant was employed

as a Vehicle Operator/Mechanic Assistant, PS-6, at the agency's Upper

Marlboro, Maryland facility. Believing he was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on August 21, 1998. At the conclusion of the investigation,

complainant was informed of his right to request a hearing before an

EEOC Administrative Judge or alternatively,

to receive a final decision by the agency. Complainant requested that

the agency issue a final decision.

In its FAD, the agency concluded that complainant (Caucasian, over 40

years of age) failed to establish a prima facie case of race or age

discrimination inasmuch as the three comparative employees cited by

the complainant (all were African-American and under the age of 40)

were not similarly-situated to complainant. Two of the comparatives

held different job positions and all three were under the age of 40. The

agency also noted the complainant reported to a different pay location

than all three of the cited comparative employees.

Nevertheless, the agency articulated a legitimate, nondiscriminatory

reason for its action. Specifically, the Supervisor of Customer Service

(Caucasian, age 39)(Supervisor) stated that complainant was informed

when he submitted his request for leave that he would only be allowed

to use 80 hours of dependant care sick leave (FMLA). The Supervisor

stated that he also told the complainant that after using the 80 hours,

he would be allowed to use either annual leave or leave without pay for

the remainder of his absence. The Supervisor further stated that the

complainant disagreed and argued that other employees had been allowed

to use more than 80 hours of sick leave and therefore, why couldn't he.

The Supervisor explained that he had spoken to the Labor Relations office

and discovered that he had been wrong in allowing employees to use more

than 80 hours for FMLA. The Supervisor concluded that to the best of

his knowledge, all three comparatives were given up to 80 hours of sick

leave usage and the same options as complainant.

In sum, the agency found that the complainant failed to establish that

the agency's articulated reasons were not credible or were pretext to

mask prohibited discrimination. Furthermore, the complainant did not

present evidence that any agency official harbored discriminatory animus

towards members of complainant's protected group.

On appeal, complainant contends that he was not required to report to

a different pay location as stated by the agency. He also states that

at the time he took his leave no one in management was sure of the leave

policy so he requested sick leave. The agency requests that we affirm

its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979), the

Commission agrees with the agency that complainant failed to establish a

prima facie case of race and age discrimination because complainant failed

to demonstrate that similarly-situated employees not in his protected

class were treated differently under similar circumstances. In reaching

this conclusion, we note that complainant did not dispute the agency's

assertions that he was informed by the Supervisor, prior to taking sick

leave, that after using the 80 hours, he would be required to use either

annual leave or leave without pay for the remainder of his absence. The

Commission further finds that complainant failed to present evidence

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

actions were a pretext for discrimination. Therefore, after a careful

review of the record, including complainant's contentions on appeal,

and arguments and evidence not specifically addressed in this decision,

we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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. 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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 28, 2000

__________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 To the extent complainant alleges the agency violated specific

provisions in the FMLA, the Commission notes that it does not have

enforcement responsibility for the FMLA. See Lee v. United States Postal

Service, EEOC Appeal No. 01965341 (September 4, 1998), at footnotes 2

and 4.