01980432
04-26-2000
Norman A. Lakatos, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Alleg./Mid-Atlantic Region), Agency.
Norman A. Lakatos v. United States Postal Service
01980432
April 26, 2000
Norman A. Lakatos, )
Complainant, )
) Appeal No. 01980432
v. ) Agency No. 4-C-440-0059-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Alleg./Mid-Atlantic Region), )
Agency. )
____________________________________)
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
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). Complainant alleged that he was discriminated
against on the bases of race (White) and age (59) when on October 11,
1996, his job as a Window Services Technician (T-6) at the Briggs Station
was abolished and, subsequently, on October 15, 1996, he was reassigned
to work at the agency's Processing and Distribution Center (P&DC).
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on November
18, 1996. 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.
When complainant failed to respond within the time period specified in
64 Fed. Reg. 37,657 (to be codified at 29 C.F.R. � 1614.110), the agency
issued a final decision.
In its FAD, the agency concluded that complainant did not establish
a prima facie case either of race or age discrimination, since the
cited comparative employees were not similarly situated to him and
individuals both inside and outside complainant's protected groups were
also reassigned to the P&DC. Moreover, assuming complainant established a
prima facie case on either basis, the agency found that it had articulated
a legitimate, nondiscriminatory reason for its action. This was that
agency guidelines called for T-6 clerks to work at the retail windows
for seven hours a day, but that complainant and other T-6 clerks were not
working at the retail windows for this amount of time. Therefore, their
positions were abolished because the guidelines were not being followed.
The agency found that complainant failed to establish that its articulated
reason was a pretext for discrimination.
On appeal, complainant contends that after his T-6 clerk job was
abolished, a person not in his protected groups began working at the
retail windows at a higher level of pay than he had been getting and for
less than seven hours a day. The agency states that it never received
a copy of complainant's appeal brief.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973); and 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), the Commission agrees with the agency that complainant
failed to establish a prima facie case of race or age discrimination
because the cited comparison employees were not similarly situated to him.
In reaching this conclusion, we note that to be similarly situated, all
relevant aspects of complainant's employment situation must be nearly
identical to those of the cited comparison employees. Here, however,
each of the six comparison employees cited by complainant was assigned
a different pay location, and none worked under the same supervisor
as complainant. See Sessions v. United States Postal Service, EEOC
Request No. 05940976 (February 1, 1996).
The Commission further 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. In reaching this conclusion,
we note that individuals both within and without complainant's protected
groups were reassigned to the P&DC. Thus, there is no evidence that
agency officials were predisposed to discriminate against individuals
within complainant's protected groups when abolishing the T-6 positions
for not following the guidelines.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
April 26, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 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.