Norman A. Lakatos, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Alleg./Mid-Atlantic Region), Agency.

Equal Employment Opportunity CommissionApr 26, 2000
01980432 (E.E.O.C. Apr. 26, 2000)

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.