William H. Sanders, Jr. Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 22, 2000
01976070 (E.E.O.C. Feb. 22, 2000)

01976070

02-22-2000

William H. Sanders, Jr. Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


William H. Sanders, Jr. v. United States Postal Service

01976070

February 22, 2000

William H. Sanders, Jr. )

Complainant, )

)

v. ) Appeal No. 01976070

)

William J. Henderson, ) Agency No. I-J-483-1029-96

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

William H. Sanders, Jr. (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.<1> Complainant's claim of

discrimination is based upon reprisal (prior EEO activity), when on

November 11, 1995, he learned that he had not been properly paid as a

full-time regular employee from March 4, 1995 through September 15, 1995.

The appeal is accepted in accordance with EEOC Order No. 960.001.

Complainant sought EEO counseling on January 9, 1996, and filed a formal

complaint on April 24, 1996. Following an investigation, complainant

received notice of his right to request either a hearing before an

EEOC administrative judge or a final agency decision without a hearing.

Complainant failed to request a hearing. Accordingly, on July 15, 1997,

the agency issued its final decision which found that complainant was not

discriminated as alleged. It is this agency decision which complainant

now appeals.

Complainant works as a mail handler in the Detroit, Michigan Post Office.

Pursuant to a prior EEO complaint, complainant received back pay through

March 4, 1995. See Sanders v. USPS, EEOC Appeal No. 01955502 (July

28, 1997).<2> The record is unclear as to the date complainant was

reinstated as a regular employee to the mail handler's craft, however,

it is undisputed that he was reinstated no later than March 4, 1995.

However, between March 4, 1995 through September 15, 1995, complainant

received his pay as a part-time flexible employee rather than a regular

employee. In July, 1996, complainant received a $1200 pay adjustment

rather than the $2600 that he believed he should have received. Finally,

on February 21, 1997, complainant received the full amount of pay that

he was entitled.

The agency determined that complainant failed to present a prima facie

case of reprisal discrimination since complainant failed to identify an

agency official responsible for the pay discrepancy.<3> Accordingly, the

agency found that complainant failed to show that the responsible official

was aware of complainant's prior EEO activity. In addition, the agency

determined that complainant failed to present a causal connection between

his participation in the protected EEO activity and the adverse action.

In addition, although complainant could not identify a responsible

management official, the agency contacted a human resource specialist

(HR1) who affirmed that she did not know complainant, nor had she been

named in his prior EEO complaint. HR1 further affirmed that she became

aware of complainant's pay discrepancy in April, 1996 and contacted

the Minneapolis Postal Data Center (PDC) in an attempt to rectify

the discrepancy. It was HR1's understanding that PDC would make the

necessary adjustments without further input from HR1. Accordingly,

HR1 did not follow-up on the status of complainant's adjustment.

In addition, an accounting technician (AT) affirmed that complainant

received the adjustment by check dated February 21, 1997.<4> Accordingly,

the agency found that, assuming complainant could establish a prima facie

case of reprisal discrimination, the agency articulated a legitimate,

non-discriminatory basis for its delay in rectifying the pay discrepancy.

Lastly, the agency found that complainant failed to meet his burden of

establishing that the agency's articulated reasons were not credible or

were a pretext to mask prohibited discrimination.

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 determined that complainant failed to present

a prima facie case of reprisal discrimination. Accordingly, we do not

address whether or not the agency sufficiently articulated a legitimate,

non-discriminatory reason for its employment action. Since, on appeal,

complainant fails to address the agency's finding that complainant failed

to establish a prima facie case of discrimination, but rather attacks

only the agency's articulated reasons for its employment action, 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.

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:

2/22/00

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 Complainant does not allege that the agency failed to comply with the

remedy awarded in this decision or pursuant to this complaint.

3 Complainant affirmed that he did "not know who is actually responsible

for the retaliatory action."

4 Complainant confirms in his appellate statement that he in fact received

the accurate adjustment on February 21, 1997. However, he argues that

he is entitled to additional remedies.