01970534
10-28-1999
Gerald W. Heath, Appellant, v. William S. Cohen, Secretary, Department of Defense, Agency
Gerald W. Heath, )
Appellant, )
) Appeal No. 01970534
v. ) Agency No. 95DCMW25029
)
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq, and the Age Discrimination in Employment Act of 1967, as amended,
29 C.F.R. Section 621 et seq. Accordingly, the appeal is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly found no discrimination
when appellant was not converted from a part-time to full-time WG-7404-05
Meat Cutter position at Tinker Air Force Base Commissary.
BACKGROUND
Appellant filed a formal complaint alleging discrimination on the bases
of race (Black), color (Black) age (DOB 01-21-51) and sex (male), when
he was not converted from a part-time to full-time meat cutter position
on May 14, 1995, when four of appellant's part-time colleagues<1>
were converted in settlement of a union grievance. Appellant alleged
management failed to follow agency procedures for converting part-time
to full-time appointments.<2> The union negotiated settlement provided
that three remaining part-time employees, including appellant, would
be converted within the year. Appellant was in fact converted to a
full-time position in October 1995.
In the Report of Investigation (ROI) the Commissary Officer (CO) denies
appellant's allegations of discrimination. The CO stated that he was
unaware of the 1994 union agreement when he agreed to immediately convert
the first four meat cutters. He stated he converted them first because
they filed the grievance and because he wanted to avoid arbitration.
He stated he did not agree to convert all seven simultaneously because
he wanted to maintain flexibility in scheduling shifts with the remaining
part-time employees. The record indicates the four meat cutters converted
in May 1995, included one Black, one White, one Native American and
one Hispanic employee. Two were older than appellant. All were male.
The three remaining part-time employees included appellant, another
Black male, and one White male.
The agency sent appellant the ROI with notice that he could request either
an EEO administrative hearing or a final agency decision (FAD) based on
the existing record. After receiving no response from appellant, the
agency issued a FAD in which it determined that management articulated
legitimate, nondiscriminatory reasons for its actions and therefore,
found no discrimination.
On appeal, appellant argues that he was denied an administrative hearing
before an EEOC Administrative Judge (AJ) because notice was not served
on his attorney. Appellant notified the agency in June 1995, that he
was represented by Attorney 1. Two weeks later, he notified the agency
that Attorney 1 died. Appellant then hired Attorney 2. On appeal,
appellant submits a letter dated September 13, 1995, from Attorney 2 to
the agency notifying the agency of the representation. The agency file
does not contain the letter. The agency continued sending correspondence
to Attorney 1's partner (the Partner). On April 1, 1996, the agency
sent the ROI with instructions on requesting a hearing before an EEOC
AJ to appellant and to the Partner. Attorney 2 sent a letter dated July
24, 1996, to the Regional Equal Employment Manager stating that he just
received the ROI and notice of right to a hearing from appellant and that,
due to the agency's failure to comply with the notice of representation,
he was unable to advise appellant on instructions for requesting an
administrative hearing. He requested a waiver of the 30 day period to
request a hearing.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R �1614.605(d) provides that where the agency
receives written notice of the name and address of a representative
for the complainant, all official correspondence shall be with the
representative with copies to the complainant. Where the designated
representative is an attorney, service of documents and decisions
shall be made on the attorney and not on the complainant. There is no
evidence that the agency received Attorney 2's notice of representation.
The Commission finds that the agency provided appellant with notice of his
right to request an administrative hearing and provided instructions on
how to do so. Appellant waited more than two months to bring the notice
to Attorney 2's attention. By failing to timely respond, appellant
waived his right to request a hearing.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimination. If appellant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In
an ADEA case, the ultimate burden remains on appellant to demonstrate, by
a preponderance of the evidence, that age was a determinative factor. Loeb
v. Textron, 600 F. 2d 1003 (1st Cir. 1979); Fodale v. Department of
Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).
This established order of analysis, in which the first step normally
consists of determining the existence of a prima facie case, need not
be followed in all cases. Where the agency articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether petitioner has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 11, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., the CO negotiated
with the union to immediately convert four meat cutters to settle their
grievance and avoid arbitration. The CO and union negotiated a delay
in converting appellant and the other two part-time meat cutters so that
the CO could maintain flexibility in scheduling. The CO was unaware of
the 1994 union agreement.
The burden returns to appellant to demonstrate that the agency's reason
was a pretext for discrimination, that is, that the agency was more likely
motivated by discriminatory reasons. Burdine, 450 U.S. at 253. Appellant
provides no evidence in support of his claim that the agency delayed
his conversion to full-time employment based on his age, race or sex.
In fact, the record reveals that the four meat cutters converted before
appellant were all male, two were older that appellant, and one was Black.
Appellant fails to prove that he was treated differently than similarly
situated employees.
CONCLUSION
Based on the foregoing, the Commission concurs with the agency's finding
that failure to convert appellant to full-time meatcutter in May 1995,
was not the result of unlawful discrimination. Accordingly, the decision
of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 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 (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
Oct. 28, 1999
________________________ _______________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations1 The four employees were union
members. Appellant was not a union member.
2 An April 14, 1994, agreement between the union and management provided
that conversions would be made on the bases of job category, years of
service and present appraisal rating.