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.