01975106
06-10-1999
Milton F. Howard, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Milton F. Howard, )
Appellant, )
)
v. ) Appeal No. 01975106
) Agency No. 4H-300-1126-95
William J. Henderson, ) Hearing No. 110-96-8355X
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
On June 12, 1997, Milton F. Howard (appellant) timely appealed the
final decision of the United States Postal Service (agency), dated
June 9, 1997, concluding he had not been discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. In his complaint, appellant alleged that agency
officials had discriminated against him on the bases of his race (Black),
disability (recovering drug addict) and/or retaliation for engaging in
prior EEO activity, when: (1) on May 2, 1995, his days off were changed
from Sunday-Mondays to Friday-Sundays; and (2) on May 8, 1995, he was
issued a Letter of Warning and instructed to make his own clock rings
and document all future absences from work. This appeal is accepted in
accordance with the provisions of EEOC Order No. 960.001.
At the time of the events at issue, appellant had been employed by the
postal service for 28 years and was currently working as a Delivery
Supervisor at the Hapeville Station in Atlanta, Georgia. In early 1995,
a new Station Manager (Black) took over the Hapeville Station. The new
Station Manager indicated to appellant that she wanted him to work on
Mondays, which was one of his regularly scheduled off-days, because it
was the busiest delivery day of the week. Eventually, effective May 2,
1995, she officially changed his days off so that he was required to work
on Mondays. Appellant contended that she took this action in order to
provoke him into doing something which would require disciplinary action.
On May 5, 1995, the Station Manager issued appellant a Letter of Warning.
The letter contained two charges stemming from an incident which occurred
on April 27, 1995. The first charge asserted that appellant performed
his duties in an unsatisfactory manner because he failed to properly
schedule work resulting in delayed delivery of first class mail.
In addition, the letter noted that appellant filed certain required
reports after the established deadline. The letter's second charge
asserted appellant engaged in conduct unbecoming a postal employee
when he reacted in an unprofessional, loud and confrontational manner
when the Station Manager attempted to discuss his performance problems.
On the same day, the Station Manager said that she told appellant that
he had to document his future absences and clock in personally because
he was frequently late or absent and his employees were having to work
unsupervised. In addition, she said that he was having other employees
clock in on his time card even though he had not yet arrived.
On January 17, 1996, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On March 12, 1997, following a hearing at which two witnesses testified,
the AJ issued a decision from the bench, concluding no discrimination
or retaliation had occurred in any of these matters. In that decision,
the AJ initially found that appellant failed to establish a prima facie
case of discrimination and/or retaliation because there was no evidence
of similarly situated employees being treated more favorably. Moreover,
the evidence did not show that the Station Manager responsible for the
disputed actions was aware of appellant's prior EEO activity or of his
status as a recovering drug addict. The AJ went on to conclude that
even if appellant had raised an initial inference of discrimination,
the agency successfully rebutted that inference with its articulation of
legitimate, nondiscriminatory reasons for its actions in this matter. The
AJ concluded that appellant failed to meet his burden of proving, by a
preponderance of the evidence, that the agency's articulated reasons
for its actions in this matter were unbelievable or that its actions
were more likely motivated by discriminatory and/or retaliatory factors.
On June 9, 1997, the agency adopted the findings and conclusions of the
AJ and issued a final decision finding no discrimination or retaliation.
It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns
no basis to disturb the AJ's finding of no discrimination. Nothing
proffered by appellant on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of no
discrimination and/or retaliation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 10, 1999
__________________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations