01973673
04-12-2000
George E. Coles, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.
George E. Coles v. United States Postal Service
01973673
April 12, 2000
George E. Coles, )
Complainant, )
)
v. ) Appeal No. 01973673
)
William J. Henderson, ) Agency No. 1C-151-1058-96
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision
of the United States Postal Service (agency) 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.<1>
Complainant's claim of discrimination is based upon his race (Black), sex
(male), and reprisal (prior EEO activity), when on or about March 20,
1996, his schedule change request was denied. The appeal is accepted
in accordance with EEOC Order No. 960.001.
On or about June 20, 1995, complainant filed a formal complaint claiming
discrimination as referenced above. Complainant's complaint was accepted
for processing. Following an investigation, appellant failed to request
a hearing before an EEOC Administrative Judge (AJ). Accordingly, on
March 5, 1997, the agency issued a final decision of no discrimination.
It is this agency decision which complainant now appeals.
The record reveals that during the relevant period, complainant was
assigned to the Mail-handler Craft as a limited duty employee. On or
about March 20, 1996, complainant requested a change of his lay-off days
(unscheduled days) so that he could work on the weekend. The record also
reveals that between January, 1995 and May, 1996, complainant made nine
schedule change requests from his supervisor, RMO (white, male). The RMO
approved five of those requests. The agency found that complainant failed
to present a prima facie case of race or sex discrimination. Specifically,
complainant had not identified similarly situated employees outside of his
protected classes who were treated more favorably. While complainant did
identify comparative individuals, the agency noted that all employees
identified by complainant were distinguishable. For example, all employees
identified by complainant were light duty employees rather than limited duty
employees. In addition, the agency noted that none of the employees:
(1) were assigned to the same pay location as complainant; and (2)
requested a "lay-off" day (non-scheduled day) change to work the weekend.
More importantly, we note that none of the employees shared the same
supervisor.
The agency also found that complainant failed to present a prima facie
case of reprisal. Specifically, the agency found that there was no
evidence that the RMO was the alleged responsible management official
in complainant's prior EEO complaint. The agency also determined
that complainant's initial EEO counselor contact in the present case,
which was approximately 3 � months after the prior EEO activity, was
insufficient to support an inference of retaliation.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that with respect to the sex and race claims, the agency accurately
set forth the relevant facts and properly analyzed the case using the
appropriate regulations, policies, and laws.
We disagree, however, with the agency's analysis with respect
to the reprisal claim, but nevertheless agree with the agency's
ultimate determination of no discrimination. Specifically, we find
that complainant met his burden of presenting a prima facie case of
discrimination. We disagree with the agency's finding that the passage
of 3 � months between the protected activity and the allegation raised
in this complaint was insufficient to give rise to an inference of
retaliatory motive.<2> See Coffman v. VA, EEOC Request No. 05960473
(November 20, 1997) (holding 10 months between prior EEO activity and
adverse action sufficiently close in time to infer a retaliatory motive.)
In addition, the record indicates that the RMO was aware of complainant's
prior protected activity. See Hochastdt v. Worcester Foundation for
Experimental Biology Inc., 425 F. Supp. 318 (D.Mass. 1976), aff'd,
545 F.2d 222 (1st Cir. 1976).
While we find that complainant presented a prima facie case of reprisal,
we also find that complainant failed to discredit the agency's legitimate,
non-discriminatory explanation for its employment action or otherwise
prove discriminatory animus. Specifically, the record indicates that
the RMO explained that complainant's request was denied because the
work volume did not suit such a request. Complainant requested to
change his off days from Sunday/Monday to two days during the week.
The RMO explained that there was a higher volume of mail during
the week and accordingly, the switch of complainant's off-days was
not beneficial to the agency. Complainant presented no evidence of
pretext or discriminatory animus. On appeal, complainant argues that
pretext was shown because the identified comparators were allowed off
days during the week. Since we find that the identified comparators
are not similarly situated, we find that the fact that they may have
been permitted time off during the week insufficient to prove pretext.
We note that the record is devoid of evidence which indicates that the
RMO permitted any of his own subordinates permission to change their
off-days from weekends to weekdays. In addition, as complainant offered
no additional persuasive evidence to support his claim on appeal, we
discern no basis to reverse the agency's finding of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the final agency decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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 this 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 this 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 this 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 (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:
April 12, 2000
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
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 We note that the record does not set forth the actual dates of the
prior EEO activity at issue with any reliability. However, the agency
stipulates that such conduct took place, at the most, 3 � months prior to
the adverse action at issue. Moreover, appellant does not dispute this
time-frame on appeal. Also, because we find that appellant presented
a prima facie case, the actual dates are not critical to our decision.