01982275
02-03-2000
Jerry Kilian, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E. / S.W. Region) Agency.
Jerry Kilian v. United States Postal Service
01982275
February 3, 2000
.
Jerry Kilian,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(S.E. / S.W. Region)
Agency.
Appeal No. 01982275
Agency No. 4-H-1161-93
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of age (DOB 1/19/43) in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and
on the basis of 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 on December 8, 1992, when he was denied a
transfer to the Melbourne, Florida Post Office. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was
employed as a city letter carrier at the agency's Cocoa Beach, Florida
facility. Complainant alleged that the Postmaster at the Cocoa Beach
facility denied his transfer to the Melbourne facility in February
1990; January 1991; January 1992 and December 1992. Complainant
stated that the Postmaster denied his first request because he had
only been employed at the Cocoa Beach installation less than eighteen
months. Complainant further stated that all of his subsequent requests
were denied due to the Postmaster's claims of personnel shortages and
excessive overtime. Complainant cited six comparative individuals who
were allowed to transfer during the time in question. Complainant also
filed a grievance through the collective bargaining agreement.
The Postmaster stated that he was unable to release complainant to the
Melbourne Post Office because of the shortage of carriers at the Cocoa
Beach facility. While noting that carriers not on the overtime list
were sometimes required to work in order to make timely delivery of the
mail, the Postmaster asserted that he had "not been permitted to hire in
approximately three years." The Postmaster further indicated that others
have been denied transfer for "similar reasons," while others have been
able to get immediate transfers stemming from special circumstances, for
which complainant did not qualify. He also indicated that complainant
was ultimately offered a transfer once a new carrier was hired and
trained at the Cocoa Beach facility. Finally, the Postmaster noted that
complainant declined the offer to transfer and opted to let "the system
[EEO process and grievance procedure] resolve the situation."
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on March 9, 1993. By
letter dated May 26, 1993, complainant was advised that his allegation had
been accepted for investigation. At the conclusion of the investigation,
complainant was sent a copy of the investigative file and notified of the
opportunity to request either a hearing before an EEOC Administrative
Judge or a FAD without a hearing. Complainant requested a hearing,
but prior to that hearing, a settlement agreement was reached between
complainant and the agency on April 15, 1994. Complainant alleged,
however, that the settlement agreement had been breached and requested
his case be reopened at the stage processing ceased. The record shows
that the agency denied breach and that complainant subsequently appealed
this decision to the Office of Federal Operations (OFO). In a November 3,
1995 decision, OFO remanded complainant's case to the agency. The agency
forwarded complainant's file to the Administrative Judge for a hearing
in compliance with OFO's decision. Complainant withdrew his request for
a hearing by letter dated August 27, 1997, and the Administrative Judge
remanded the file back to the agency for a decision without a hearing.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of age or sex discrimination because he presented no
evidence that similarly situated individuals not in his protected classes
were treated differently under similar circumstances. The agency noted
that while complainant cited six comparators, only one is female and
therefore sex could not have been a factor in complainant's denial of a
transfer. The agency then asserted that none of complainant's comparisons
are similarly situated to complainant for the following reasons:
Comparison 1 (male, age 29) was a distribution clerk, not a carrier,
and Postal policy is to accept clerk requests to transfer to carrier
position in order to reduce clerk personnel; Comparison 2 (male, age 35)
was also a distribution clerk with the exact situation as Comparison 1;
Comparison 3 (male, age 38) requested a downgrade to level 3 custodian and
after passing the custodian exam was allowed to do so; Comparison 4 (male,
age 38) was transferred as a result of an EEO settlement; Comparison 5
(male, age 41) was transferred due to a proven and accepted hardship to
him based on receiving medical attention for his child; and Comparison 6
(female, age 34) was allowed a transfer to Merritt Island as a carrier
because she had experienced an incident which endangered her safety on
her route after just three weeks of her reassignment at the Cocoa Beach
facility. The FAD then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the Postmaster
stated that his actions were because of the shortage of carriers at the
Cocoa Beach facility. The agency asserted that the Postmaster was unable
to hire anyone for approximately three years, but that the Postmaster
ultimately offered to release complainant once additional staffing was
finally employed. Furthermore, the agency noted that complainant elected
not to accept the transfer. Finally, the FAD concluded that complainant
failed to show that age was a determinative factor in the sense that
"but for" age, complainant would not have been subjected to the action
at issue. On appeal, complainant makes no new contentions and the agency
requests that we affirm its FAD.
ANALYSIS
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. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). Complainant has the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. If complainant meets this burden, then the burden shifts
to the agency to articulate some legitimate, nondiscriminatory reason
for its challenged action. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Complainant must then prove, by a preponderance
of the evidence, that the legitimate reason articulated by the agency
was not its true reason, but was pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of sex discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, to establish a prima facie case
of discrimination based on a Title VII disparate treatment claim,
complainant must show that he belongs to a statutorily protected class
and that he was accorded treatment different from that accorded persons
otherwise similarly situated who are not members of the class. Comer
v. Federal Deposit Insurance Corporation, Request No. 05940649 (May 31,
1996)(citing Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,
865 (6th Cir. 1975)). In order for two or more employees to be considered
similarly situated for the purpose of creating an inference of disparate
treatment, complainant must show that all of the relevant aspects of his
employment situation are nearly identical to those of the comparative
employees whom he alleges were treated differently. Smith v. Monsanto
Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985).
In an ADEA case, complainant may establish a prima facie case by showing
that he is in the protected group (over 40), and was treated less
favorably than other similarly situated employees outside his protected
group. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 878
(1996).
Here the record shows that complainant is a member of a protected group,
male, and that he was subjected to adverse agency action, repeated denial
of transfers. However the Commission finds that complainant has not
established that other employees not of his protected group were treated
differently under similar circumstances. Complainant cited only one female
comparison, Comparison 6, who was transferred to Merritt Island because
of her expressed fear for her personal safety while delivering mail on
her Cocoa route. The record, however, does not show that complainant
wanted a transfer for reasons of his personal safety. Thus, complainant's
employment situation is not nearly identical to that of the comparative
employee whom he alleges was treated differently. In the absence of
any other evidence from which to infer a discriminatory motive, the
Commission finds that appellant has not established a prima facie case of
sex discrimination. Also, we find that complainant has failed to establish
a prima facie case of age discrimination. While complainant is within
the ADEA's protected group, complainant has failed to present evidence
that similarly situated individuals not in his protected class were
treated differently under similar circumstances. The record indicates
that none of the six comparators cited by complainant are similarly
situated to complainant. Each of the comparators' transfers seems to
have emanated from unique circumstances, for which complainant did not
qualify. Moreover, the evidence does not support complainant's claim that
he was denied a transfer to the Melbourne Post Office because of his age.
Accordingly, based on a thorough review of the record, and for
the foregoing reasons, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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
February 3, 2000
__________________
Date
1On 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.