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.