Jerry Kilian, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E. / S.W. Region) Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01982275 (E.E.O.C. Feb. 3, 2000)

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.