01984417
02-08-2000
Wilbert Hill, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Wilbert Hill v. United States Postal Service
01984417
February 8, 2000
Wilbert Hill, )
Complainant, )
)
v. ) Appeal No. 01984417
)
William J. Henderson, ) Agency No. 4E-852-0048-97
Postmaster General, )
United States Postal Service, )
(Pacific/Western Areas), )
Agency. )
_______________________________)
DECISION
Wilbert Hill (complainant) filed an appeal with this Commission from a
final decision of the United States Postal Service (agency) concerning
his 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., the Age Discrimination in Employment Act (ADEA)
of 1967, as amended, 29 U.S.C. � 621 et seq., and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 701 et seq.<1> Complainant's
claim of discrimination is based upon his race (Black), sex (male), age
(DOB: 3/21/47), retaliation (prior EEO activity) and physical disability
(back, left knee and left hand), when, on November 20, 1996, he was
placed on Emergency Placement Off-Duty Status. The appeal is accepted
in accordance with EEOC Order No. 960.001.
On June 27, 1997, complainant filed a timely formal EEO complaint
claiming discrimination as referenced above. Complainant's complaint was
accepted for processing. Following an investigation, complainant failed
to request a hearing before an EEOC administrative judge. Accordingly,
on April 8, 1998, the agency issued a final decision of no discrimination.
It is this agency decision which complainant now appeals.
Complainant began his employment with the agency on September 14, 1985.
Complainant currently works as a PTF Distribution Clerk (Modified),
PS-05, assigned to the Tempe Retail Store, Tempe, Arizona. The record
is generally undisputed and indicates the following. Complainant had a
verbal altercation with a co-worker (female, Caucasian, no disability,
no prior EEO activity, age unknown) (C1). Complainant's supervisor
(Caucasian, male, no prior EEO activity, no disability, age unknown)
(S1) instructed C1 to return to her work area and she was followed by
complainant who badgered her in a loud voice. S1 instructed complainant
to return to his work area and complainant shouted at S1. The complainant
was instructed to lower his voice and again return to his work area.
Complainant continued to speak in a loud voice and refused to follow
S1's instructions. Based upon complainant's conduct he was instructed to
leave the premises and placed in an emergency placement off-duty status.
Complainant asserts that no investigation was performed prior to his
being placed off-duty. Contrary to the evidence of record, complainant
also asserts that he had no other discipline in his records and that
the most recent discipline was not progressive.<2> Lastly, complainant
argues that the circumstances in his case did not meet the criteria for
placement in an off-duty status.
The agency determined that complainant failed to raise an inference of
discrimination because he failed to present similarly situated employees
outside his protected classes who receive more favorable treatment.
In addition, the agency determined that it articulated a legitimate,
non-discriminatory reason for its employment action. Specifically, the
responsible management officials explained that complainant failed to
follow his supervisor's instructions and posed a threat to the safety of
others in the workplace. Lastly, the agency determined that complainant
failed to prove pretext or that the agency was motivated by discrimination
based upon race, sex, age, disability or reprisal.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the agency accurately set forth
the relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. Since complainant fails to raise any
arguments on appeal we discern no basis to reverse the agency's finding
of no discrimination. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final agency decision
finding no discrimination.
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:
2/8/00
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
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.
2 The evidence shows that contrary to complainant's assertions, he has
an extensive past disciplinary record involving acts of insubordination.
In addition, the record shows that C1 had complained on several occasions
that complainant had been harassing C1 and other female employees.