01980602
03-23-2000
Preston E. Turner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Preston E. Turner v. United States Postal Service
01980602
March 23, 2000
Preston E. Turner, )
Complainant, )
) Appeal No. 01980602
v. ) Agency No. 4G711101294
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Negroid), sex (male), age (46), and physical disability
(morbid obesity), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and
the Rehabilitation Act of 1973, as amended,<1> 29 U.S.C. � 791, et seq.<2>
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37, 659
(1999) (to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the FAD as CLARIFIED.
The record reveals that during the relevant time, complainant was
employed as a Clerk at the agency's Shreveport, Louisiana postal facility.
As an accommodation to a heat sensitivity disorder, complainant worked
half of his shift at the Shreveport plant facility, and the other half
in the Customer Services facility, creating an overlapping Tour 1 and
Tour 2 schedule. Complainant claims that the Tour 2 supervisor at the
Customer Services facility (S)<3> denied his request for eight hours
of annual leave on April 28, 1994, (citing the needs of the postal
service), but that he approved leave for this same day for a younger
white female co-worker (FCW) who submitted her request several hours
later than complainant. Complainant argues that according to the rules,
S should have granted his request, and denied FCW's, because he submitted
his request first.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion of
the investigation, the agency issued a FAD, finding no discrimination.
The FAD concluded that complainant established prima facie cases of
race, sex, age, and disability discrimination when he demonstrated that
similarly situated employees not in his protected classes were treated
differently than him under similar circumstances. However, the FAD then
determined that the agency articulated legitimate nondiscriminatory
reasons for its action, and that complainant was unable to show that
these reasons were a pretext for discrimination.
Complainant now appeals this determination, contending that S's reasons
are untrue, and that his affidavit testimony is not credible.<4> He
also contends that S responded angrily when confronted with his improper
handling of complainant's leave request, and forced him to work two hours
of over-time, arguing that this is evidence of discriminatory animus.
The agency requests that we affirm its FAD.<5>
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979), and Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), the Commission agrees with the agency that complainant
established a prima facie case of race and sex discrimination for the
reasons stated,<6> but we find that he did not establish a prima facie
case of age discrimination because FCW was also over 40 years of age,
and only three years younger than complainant.<7> We CLARIFY the FAD
accordingly.
The Commission further agrees with the agency 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 S testified that his desk was cluttered with
papers such that he did not discover complainant's leave request until
he had already approved FCW's leave request. Regarding this approval,
S further testified that FCW had requested leave for both April 28, 1994,
and April 29, 1994, but that he denied the request for the latter day
because of exhaustion of the leave quota. FCW challenged him on this,
but he refused to "bend the rules." S stated that when he subsequently
discovered complainant's leave request, he realized that it should
have been approved instead of FCW's, but at that point he felt that he
could neither retract FCW's approval, nor "bend the rules" in favor of
complainant without potentially risking a grievance from FCW, who had
seniority over complainant. He also testified that he expected April 28,
1994, to be an especially heavy day and denied complainant's request
for leave for this reason as well. In his testimony, S acknowledged
that his decision was not technically correct, but stated he had no
discriminatory motivation.
As pointed out by complainant on appeal, we note that S did not address
Tour 1 leave quotas when making his decision. However, we find that this
does not diminish S's credibility given that he is the Tour 2 supervisor
and that complainant failed to bring this matter to his attention, raising
the argument for the first time on appeal.<8> Instead, we find that S was
appropriately focused on the Tour 2 schedule, and his concern that April
28, 1994, would be an extra heavy day is reasonable given that the postal
service was closed the previous day for former President Nixon's funeral.
Moreover, we find that the record is devoid of any evidence to suggest
that S's decision, albeit inconsistent with the "first submitted" rule,
was motivated by discriminatory animus. In this regard we additionally
find that complainant's contention on appeal that S was angry and assigned
him two hours of overtime in retaliation to his challenge is not supported
by the record and therefore is not evidence of 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 as
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
3/23/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of
discrimination by federal employees or applicants for employment.
Since that time, the ADA regulations set out at 29 C.F.R. Part 1630
apply to complaints of disability discrimination. These regulations
can be found on EEOC's website at WWW.EEOC.GOV.
2On 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.
3S was responsible for complainant's leave requests under this unusual
schedule because Customer Services was his official pay location.
4Complainant argues that he is a Tour 1 worker, but that S knowingly
and improperly used exhaustion of the Tour 2 leave quota on April 28,
1994, as the reason for denying his leave request.
5It does not appear that complainant provided the agency with a copy
of his appeal statement. Although this is a harmless error in this
case given our decision in favor of the agency, we advise complainant
that should he have an appeal before this Commission in the future, it
is mandatory that he provide the agency with his appeal statement in a
timely manner.
6Assuming arguendo, that complainant established a prima facie case of
disability discrimination, we nonetheless find that he fails to prevail
on this basis for the same reasons that he fails to prevail on the bases
of race and sex, as set forth herein.
7We note that the formal complaint only reflects FCW as a comparator,
but that the record also shows that a 40-year-old black female co-worker
submitted a leave request a day earlier than complainant and FCW, for
only 4 hours of annual leave on April 29, 1994. Because the request was
submitted one day earlier, and because it was for only 4 hours of leave
on a different day, we do not consider this "comparative evidence" for
the purpose of establishing a prima facie case of discrimination in this
instance. See Hunter v. U.S. Postal Service, EEOC Appeal No. 01969762
(October 1, 1998).
8Although complainant challenges S's credibility, we note that he failed
to request a hearing before an EEOC Administrative Judge.