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.