Richard G. Hart, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southwest Region), Agency.

Equal Employment Opportunity CommissionAug 4, 2000
01a03682 (E.E.O.C. Aug. 4, 2000)

01a03682

08-04-2000

Richard G. Hart, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southwest Region), Agency.


Richard G. Hart v. United States Postal Service (Southwest Region)

01A03682

August 4, 2000

.

Richard G. Hart,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southwest Region),

Agency.

Appeal No. 01A03682

Agency No. 4-G-770-0281�99

Hearing No. 330-A0-8052X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e 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 alleges he was

discriminated against on the bases of race (Caucasian), color (White),

and retaliation (prior EEO activity) when: (1) on February 12, 1999,

he was singled out when his supervisor (S-1) instructed him to keep

his route to 8 hours; and (2) as a result of the ensuing incident,

he was issued a Letter of Warning (LOW) on February 24, 1999. For the

following reasons, the Commission AFFIRMS the agency's final decision.

The record reveals that complainant, a Letter Carrier at the agency's

North Shepard Station in Houston, Texas, filed a formal EEO complaint with

the agency on April 21, 1999, alleging that the agency had discriminated

against him as referenced above. At the conclusion of the investigation,

complainant received a copy of the investigative report and requested a

hearing before an EEOC Administrative Judge (AJ). Determining that there

were no facts in material dispute, however, the AJ issued a decision

without a hearing, finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of race or color discrimination. Specifically, the AJ found that

complainant failed to demonstrate that similarly situated employees

not in his protected classes were treated differently under similar

circumstances when they failed to follow instructions.

The AJ did conclude, however, that complainant established a prima

facie case of retaliation since he had engaged in protected activity,

his employer was aware of the activity, and he received a LOW which was

close enough in time to his protected activity that retaliation could

be inferred.

Nevertheless, the AJ further concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions. The AJ found

that S-1 told all employees to hold the time spent on their routes to

eight hours on the day in question, because it was a no overtime day.

Complainant then became loud and disruptive when approached on the

subject, pointed his finger at S-1, and stated loudly: �I'm tired of

you telling me to hold my route to eight (8) hours. I've proven to you

that this route is overstandard. I'm not going to do it.� Because

complainant's actions disrupted the workroom floor due to his loud

outburst, S-1 issued the LOW charging complainant with improper conduct.

The AJ found that complainant failed to show that this reason was a

pretext to mask a retaliatory motive, since the situation arose out of

the �everyday tension between what management wants done and employees

think possible,� and therefore did not rise to the level of harassment.

The agency's final decision implemented the AJ's decision. Neither

complainant nor the agency makes any contentions on appeal.

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated by

discriminatory animus toward complainant's race and color. Although

complainant alleged that his route was a 10-hour route and that management

knew that he could not hold his route to 8 hours and thereby created the

confrontation, record evidence shows that his route was not overstandard

by 2 hours as complainant alleged. Hence, we discern no basis to disturb

the AJ's decision. Therefore, after a careful review of the record,

and arguments and evidence not specifically addressed in this decision,

we AFFIRM the agency's final decision.

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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 4, 2000

Date

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.