George E. Coles, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.

Equal Employment Opportunity CommissionApr 12, 2000
01973673 (E.E.O.C. Apr. 12, 2000)

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.