01a00576
02-28-2000
Kenneth Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.
Kenneth Johnson, )
Complainant, )
) Appeal No. 01A00576
v. ) Agency No. 4H-350-0318-98
William J. Henderson, ) Hearing No. 130-99-8246X
Postmaster General, )
United States Postal Service )
(S.E./S.W. Areas), )
Agency. )
)
DECISION
Complainant timely<1> initiated an appeal from the agency's final decision
concerning him equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (Black), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<2> Complainant alleges he was discriminated against when, on or
about June 4 and June 24, 1998, he was placed on Leave Without Pay (LWOP)
after he requested annual leave. 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 agency's final
decision.
The record reveals that complainant, a Letter Carrier at the agency's
Ozark, Alabama facility, filed a formal EEO complaint with the agency
on December 7, 1998, alleging that the agency had discriminated against
him as referenced above.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Determining there were no
material facts in dispute, the AJ issued findings and conclusions without
a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race discrimination because he failed to demonstrate that similarly
situated employees not in his protected class were treated differently
under similar circumstances. Specifically, complainant failed to cite
any individuals outside of his protected class who requested, and were
granted annual leave when they had a zero-leave balance. The AJ then
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that complainant was placed on LWOP
instead of annual leave because his leave balance was at zero at the
time he requested annual leave.
On November 8, 1999, the agency issued a final decision adopting the
AJ's findings and conclusions. On appeal, complainant contends that
he did in fact have leave available when he requested annual leave.
He further contends that others outside of his protected class have been
approved for annual leave when they have requested it.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgement procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgement is proper when �material facts are not in genuine dispute.�
29 C.F.R. � 1614.109(g). Only a dispute over facts that are truly
material to the outcome of the case should preclude summary judgement.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgement). For example, when a complainant is unable to
set forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element of
the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986). EEOC MD-110, at 7-15 November 9, 1999.
The Commission will apply a de novo standard of review when it reviews
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. � 1614.109(g). See, EEOC MD-110, at 9-16.
As the complaint constitutes a claim of disparate treatment, the AJ
properly analyzed it under the three-tiered analytical framework outlined
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). Applying this legal
standard to the complaint, the Commission finds that complainant failed
to establish that the agency's reasons for its actions were a pretext for
discrimination. Although complainant disputed the agency's contention
that he did not have annual leave available when he requested it, he
failed to provide any documentary evidence in support of his position.
Likewise, although he identified individual who he claimed were granted
annual leave instead of LWOP, agency documents indicate that they were
in fact, treated the same as complainant. Complainant failed to provide
any other persuasive evidence of a discriminatory animus on the part of
agency officials.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final decision.
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:
February 28, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
Equal Employment Assistant
1Although complainant's appeal was originally premature, we deem it
timely filed.
2 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.