01971748
03-12-1999
Sidney Fulwood, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Sidney Fulwood v. United States Postal Service
01971748
March 12, 1999
Sidney Fulwood, )
Appellant, )
) Appeal No. 01971748
v. ) Agency No. IF-946-1074-95
) Hearing No. 370-96-X2672
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Areas), )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
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 Final Agency Decision (FAD) was issued on
November 19, 1996 and received on November 21, 1996. The appeal was
postmarked on December 16, 1996. Accordingly, the appeal is timely,
(see 29 C.F.R. �� 1614.402(a)and 1614.604(b)), and is accepted in
accordance with EEOC Order 960.001.
Appellant filed a formal EEO complaint alleging discrimination based on
reprisal (prior EEO activity), when on or about April 7, 1995, he was
told by Acting Supervisor (S1), that he could no longer use a General
Purpose Mail Container (GPC)<1> as a workstation. Following the
agency's investigation, the administrative judge (AJ) recommended,
without a hearing pursuant to 29 C.F.R. � 1614.109(e), a finding of
no discrimination. The agency subsequently adopted the AJ's findings
and recommendation of no discrimination. It is from this decision that
appellant now appeals.
The record reveals that appellant is employed as a General Expediter
at the Oakland Processing and Distribution Center. On April 7, 1995,
he was told by S1 that he could no longer use a GPC as a workstation.
Appellant alleges that on April 10, 1995, other employees continued
to use the GPC as a workstation and he advised the Senior Manager of
Distribution Operations (S3) who stated that those employees should
also cease from using a GPC as a workstation. Nevertheless, appellant
claims that several of his co-workers continued to use the GPC.
It is undisputed that appellant engaged in prior EEO activity. However,
S1 and S3 had no knowledge of appellant's prior EEO activity. While it is
undisputed that a Manager of Distribution Operations (S2) had knowledge
of appellant's prior EEO activity, as he was named by appellant in the
prior EEO complaint, the record reveals that the decision to instruct
employees to discontinue the practice of using GPCs as workstations did
not originate from S2's office. The undisputed record reveals that S2
was acting in accordance with general instructions issued by the Plant
Manager (S4) to all managers which indicated that GPCs would have to
be utilized for their intended purpose as there was a shortage of GPCs
causing critical delays in the mail operations' ability to dispatch mail.
It is undisputed that in accordance with these instructions from S4,
S2 informed those working under his supervision, including S1, about
the new policy.
As appellant's complaint constitutes a claim of disparate treatment,
the AJ properly analyzed it under the three-tiered analytical framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56
(1981); Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976).
Applying this standard, the AJ found that appellant failed to raise an
inference of discriminatory retaliation. Specifically, the AJ viewed
the record in the light most favorable to appellant and assumed that
two of appellant's co-workers continued to use the GPC after the policy
was implemented. However, there is no evidence in the record which
shows that either S1 was aware that any employee continued to use a GPC
as a workstation after the policy was implemented. In addition, the
undisputed evidence indicates that neither S1 nor S3 (who implemented
the policy) had knowledge of appellant's prior EEO activity. While S2
had knowledge of appellant's prior EEO activity, there is no evidence
to show that he was involved (or even aware) of the continued use of
GPC by appellant's co-workers after the policy was implemented.
We agree with the AJ's reading of the record and find that appellant
has failed to present evidence sufficient to raise an inference of
discrimination. In addition, we find that the agency has proffered a
legitimate non-discriminatory justification for prohibiting appellant's
use of a GPC and appellant has presented no evidence which indicates
pretext. We note that appellant has not raised any contentions on
appeal. Accordingly, after careful review of the record, including
facts not specifically raised herein, it is the decision of the
Commission to AFFIRM the agency's final decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
3/12/99
_______________ _______________________
DATE Ronnie Blumenthal, Director
1 A GPC is a wheeled transportation and distribution container used for
transporting mail, sacks, trays and bundles. It weighs approximately 230
pounds and must be secured by a brake whenever the equipment is stationary.