Randallv.Hawkins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 5, 2000
01985942 (E.E.O.C. Apr. 5, 2000)

01985942

04-05-2000

Randall V. Hawkins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Randall V. Hawkins v. United States Postal Service

01985942

April 5, 2000

Randall V. Hawkins, )

Complainant, )

)

v. ) Appeal No. 01985942

) Agency No. 4H-350-1189-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On July 29, 1998, Randall V. Hawkins (hereinafter referred to as

complainant) filed a timely appeal from the July 1, 1998, final

decision of the United States Postal Service (hereinafter referred

to as the agency) 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. The appeal is timely filed (see 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with

64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).

For the reasons that follow, the agency's decision is AFFIRMED.

The issue presented in this appeal is whether the complainant has proven,

by a preponderance of the evidence, that the agency discriminated

against him on the basis of race (black) with regard to certain events

in March-April 1996.

Complainant filed his formal complaint on September 19, 1996. Following

an investigation, he was given notice of his right to a hearing before

an EEOC Administrative Judge or an immediate final agency decision

(FAD). He did not respond, and the agency issued a FAD, finding no

discrimination.

Complainant began his service with the agency in April 1989 and worked as

a letter carrier in Florence, Alabama. Complainant stated that he had

been injured in an automobile accident and required follow-up medical

attention. He complained that in March and April 1996, agency managers

(a) did not allow him leave to visit his doctor, charged him AWOL (absence

without leave), and did not excuse his overtime assignments in order to

keep his doctors' appointments; (b) did not permit him to meet with a shop

steward; and (c) violated his right to privacy by calling his doctor.<2>

In response, agency managers explained that complainant did not make

his requests in writing for leave or did not provide sufficient advance

notification to arrange his leave. Nevertheless, the agency stated

that it attempted to afford complainant leave except where his absence

conflicted with the needs of the service. Also, agency managers stated

that complainant was "charged an overtime opportunity" in accordance

with an arbitration decision<3> and that he was charged AWOL when he did

not return from a doctor's appointment and stayed away without leave.

His supervisors further explained that they called his doctor when he did

not return from the appointment out of concern for complainant and did

not inquire into private medical issues. Agency managers also stated

that complainant did not make a request in writing to meet with a shop

steward, although the record indicates that he met with a steward who

explained why he was charged the overtime opportunity.

In his statement in support of his appeal, complainant criticizes the

FAD and charges that the investigation was incomplete because information

had been removed. He does not describe what information was removed or

how it impacted his complaint.

In general, claims, such as the complainant's, alleging disparate

treatment are examined under the tripartite analysis first enunciated in

McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Initially,

for complainant to prevail, s/he must first establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination, i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). Following this established order of analysis is

not always necessary where the agency articulates an explanation for

its actions. In such cases, the factual inquiry can proceed directly to

the third step of the McDonnell Douglas analysis--the ultimate question of

whether complainant has shown by a preponderance of the evidence that the

agency's action was motivated by discrimination. United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

It is complainant's burden to demonstrate by a preponderance of the

evidence that the agency's action was based on prohibited considerations

of discrimination, that is, its articulated reason for its action

was not its true reason but a sham or pretext for discrimination.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

We find that the agency articulated legitimate, nondiscriminatory reasons

for its actions, i.e., the agency acted properly and in accordance with

the collective bargaining agreement with regard to complainant's leave

for medical appointments, a charge of AWOL, and a charge of an overtime

opportunity. Agency managers explained why they called complainant's

doctor and denied that it was improper, stating that they did not inquire

into his medical affairs. Finally, the managers denied that complainant

was denied an opportunity to meet with a shop steward.

The burden now returns to complainant to demonstrate that the agency's

articulated reasons for its actions were the result of discrimination.

Complainant has not shown that he was treated differently than other

employees or that he was singled out for disparate treatment. He refers

to other employees treated similarly, which does not establish disparate

treatment. Further, he has not shown that the agency acted on the

basis of a prohibited factor, such as race. Based on our review of

the record, we find therefore that complainant has not shown that the

agency's reasons for its actions were pretextual.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

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 5, 2000

Date Carlton 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________ _______________________

Date

1On 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.

2To the extent that complainant's complaint alleges a violation of and

seeks remedy under the Privacy Act, the Commission has previously held

that enforcement of the Privacy Act is not within its jurisdiction.

Dawson v. USPS, EEOC Appeal No. 01822261 (February 8, 1983).

3Apparently, an arbitration decision concerning opportunities for overtime

created a system whereby overtime work is assigned in rotation, and an

employee who is unavailable loses his turn for that cycle.