01990696
05-24-2000
Jeffrey K. Mauck, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Jeffrey K. Mauck v. United States Postal Service
01990696
May 24, 2000
Jeffrey K. Mauck, )
Complainant, )
) Appeal No. 01990696
v. ) Agency No. 1K-204-0001-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination on the
bases of race (White) and sex (male), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges he was discriminated against when: (1) on May 14,
1996, he was denied use of the telephone at the SPBS<2> machine desk; (2)
on July 8, 1996 and September 9, 1996, his request to key on his SPBS job
was denied; (3) on July 8, 1996, his Supervisor (CS) did not respond to
him and walked away from him; (4) on July 9, 1996, CS refused to return
a copy of complainant's PS Form 3971 and also refused to allow him to
see the facility nurse; (5) on August 6, 1996, CS shouted a profanity at
complainant and told him to be quiet; (6) on August 2, 1996, CS informed
complainant that she did not have to take a form from him; and (7) on
August 8, 1996, CS informed complainant that she did not have gloves
when there were gloves available. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a PS-05 SPBS Machine Clerk at the agency's Southern Processing and
Distribution Center in Capitol Heights, Maryland. Believing he was
a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed complaints on December 9, 1996, and June 9, 1997,
which were then consolidated for investigation. At the conclusion of
the investigation, complainant was informed of his right to a hearing
before an EEOC Administrative Judge. As the agency did not receive a
response from complainant, it issued a FAD.
The FAD concluded that complainant failed to establish a prima facie case
of race or sex discrimination regarding claims (1)-(7), as he presented no
evidence that similarly situated individuals not in his protected classes
were treated differently under similar circumstances, or that he was
adversely affected by the actions of CS. The FAD further found that the
agency articulated legitimate, nondiscriminatory reasons for its actions,
noting the following testimony by CS. In claim (1), CS stated that she
did not recall denying complainant the use of the telephone on the date
in question. In claim (2), CS stated that she did not let complainant
key the machine as he was on light duty and limited to keying for no
more than half an hour. In claim (3), CS stated that she could not give
complainant an immediate answer when he requested shop steward duties.
In claim (4), the CS stated that she treated complainant like all other
employees in that she did not immediately return leave slips and asked
him to wait to go to the nurse until his position could be taken by
another employee. In claim (5), CS stated she had not used profanity
and the FAD noted that complainant did not corroborate that allegation.
In claim (6), CS stated that she did not take or return leave slips
immediately, and in claim (7), CS stated that the facility procedure
at that time was that employees could get gloves when needed. The FAD
found that complainant failed to demonstrate that the CS's articulated
reasons were a pretext for discrimination. On appeal, complainant has
made no arguments, while the agency requests that we affirm its FAD.
After a careful review of the record, and based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission agrees with the
FAD that complainant failed to establish a prima facie case of race or
sex discrimination. While complainant is a member of protected groups
on the basis of his race and sex, the Commission finds that complainant
has not established that other employees not of his protected groups
were treated differently under similar circumstances. In so finding,
the Commission notes that all of the relevant aspects of complainant's
employment situation are not nearly identical to those of the comparative
employees whom he alleges were treated differently. Thus, in the absence
of any other evidence from which to infer a discriminatory motive,
the Commission finds that complainant has not established a prima facie
case of race or sex discrimination. Moreover, the Commission finds that
complainant failed to present evidence that more likely than not, CS's
articulated reasons for her actions were a pretext for discrimination.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, and for the reasons
stated herein, 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:
May 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 there is no reference in the record stating what "SPBS" is an
abbreviation for.