Larry Cummings, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 19, 2000
01a00043 (E.E.O.C. Oct. 19, 2000)

01a00043

10-19-2000

Larry Cummings, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Larry Cummings v. United States Postal Service

01A00043

October 19, 2000

.

Larry Cummings,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A00043

Agency No. 1-D-272-0002-99

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) 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

(ADEA) of 1967, as amended, 29 U.S.C. �621 et. seq.<1> The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that

he was discriminated against on the bases of age (58) and retaliation

(prior EEO activity) when on September 21, 1998 he was instructed to

return to duty, even though he had proper documentation from his doctor

to be excused from duty for an �indefinite� period of time.

The record reveals that during the relevant time, complainant was employed

as a Supervisor, Distribution Clerk at the agency's Greensboro Bulk Mail

Center. Believing he was a victim of discrimination, complainant sought

EEO counseling and subsequently filed a formal complaint on December 1,

1998. At the conclusion of the investigation, complainant was informed

of his right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision (FAD).

In its FAD, the agency concluded that complainant failed to meet his

prima facie burden of establishing age discrimination since there was

no evidence in the record of similarly situated comparison employees who

fell outside of complainant's protected class and who were treated more

favorably than complainant. The agency also concluded that complainant

failed to present a prima facie case of retaliation. Specifically,

the agency noted that the responsible management official (RMO) cited

by complainant herein was not named in any prior EEO complaint that

complainant filed and there was no evidence that the RMO was aware of

complainant's prior EEO activity.

The agency also found that it articulated a legitimate, non-discriminatory

reason for its employment action. Specifically, the agency noted that RMO

stated that complainant went out on stress related medical problems prior

to being transferred to his Tour (Tour 2) as a supervisor. Therefore,

RMO stated that complainant never reported to Tour 2 and has never been

under his supervision. RMO stated that initially, complainant provided

medical documentation indicating that he would not be returning to work

at the time and there was no indication on when he might return. Since

the initial notification, complainant had not provided any additional

information concerning his medical status on a weekly or monthly basis.

RMO further explained that he contacted complainant to question why he

had not reported to work since he was transferred to Tour 2. According

to RMO, complainant then provided medical documentation indicating a

stress condition and that he would not be returning to work at the time.

The medical report did not indicate a specific time for reporting back

to work.

The agency found that complainant failed to present any evidence

of pretext. Additionally, it notes that the agency denies requiring

complainant to report to work and that there is no evidence in the record

which corroborates complainant's allegation that the agency made such

requirement.

Complainant does not address the FAD on appeal. However, complainant

seeks to amend his complaint to add a claim of disability discrimination.

In addition, complainant complains that his request for a different EEO

investigator was not honored. Complainant, however, failed to articulate

how he was harmed by the agency's failure to provide him with a new

investigator. In addition, complainant references numerous articles

located in the Federal Times which discuss the EEO complaint process and

general complaints of discrimination at the United States Postal Service.

Complainant also provides documents related to findings of discrimination

toward other employees.

The agency argues that complainant failed to proffer any argument of

pretext or otherwise challenge its FAD. In addition, the agency notes

that, on appeal, complainant offers irrelevant information including

newspaper articles about the EEO process, information about workplace

violence, information about disability claims and a previous EEO case

that has nothing to do with complainant's purview of physical disability.

In addition, the agency objects to complainant's efforts to amend his

complaint to add a claim of disability discrimination at this late

stage. Lastly, the agency notes that complainant has failed to prove

discrimination on any basis alleged and asks that we affirm its FAD.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)

(requiring a showing that age was a determinative factor, in the sense

that "but for" age, complainant would not have been subject to the adverse

action at issue); and Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222

(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the

Commission finds that assuming, arguendo, that complainant did establish

a prima facie case of age discrimination and reprisal, the Commission,

nevertheless, finds that complainant failed to present evidence that more

likely than not, the agency's articulated reasons for its actions were a

pretext for discrimination.<2> In reaching this conclusion, we note that

the record is devoid of any evidence of discriminatory animus or pretext.

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 FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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:

October 19, 2000

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__________________

Date

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 We also reject complainant's request to amend his complaint.

Complainant did not seek an amendment until this appeal with the

Commission, well after the investigative file was completed and the agency

issued its FAD. Accordingly, such a request is beyond the time period

permitted in our regulations. See EEO Management Directive 110 p. 5-9

(November 9, 1999). Without deciding the issue of timeliness, should

complainant wish to pursue a new disability claim, he should raise such

claim with an EEO counselor immediately.