01981884
01-06-2000
William Lipcsey, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.
William Lipcsey, )
Complainant, )
) Appeal No. 01981884
v. ) Agency No. 1C-441-0074-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the basis of race (Caucasian) in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant
alleges he was discriminated against when, on or about February 1, 1997,
he was required to use 1.8 hours of annual leave to cover an alleged
leave without pay. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission AFFIRMS the FAD
as CLARIFIED.
The record reveals that during the relevant time, complainant was employed
as a Mail Processor at the agency's General Mail Facility in Cleveland,
Ohio. Complainant alleged that on or about February 1, 1997, while he was
assigned as an allied clerk on the bar code sorter machines, he realized
after he had clocked out for lunch that the machines were still running.
He alleged that in order to prevent a back up of mail, he clocked back
in, resumed work, and then later informed the Acting Supervisor (S1)
(Black) that he had worked through lunch, explained to her why, and
advised that he was now departing for lunch. On or about February 6,
1997, complainant learned from another supervisor that his clock rings
for February 1, 1997 were short by 1 hour and 8 units. Upon inquiring,
complainant learned that S1 had deleted his clock rings for that date
and listed him as absent without leave (AWOL) for the 1 hour and 8 units
in question. S1 informed complainant that he could substitute annual
leave for the time in question. Complainant initially declined but
subsequently agreed to use annual leave.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on March 27, 1997. At
the conclusion of the investigation, complainant was advised of his
right to request a hearing before an Administrative Judge of the Equal
Employment Opportunity Commission, but he failed to respond. Accordingly,
the agency issued a FAD.
The FAD concluded that complainant failed to establish a prima facie case
of race discrimination because he failed to demonstrate that similarly
situated employees not in his protected classes were treated differently
than him under similar circumstances. The FAD further concluded that
even assuming complainant had established a prima facie case of race
discrimination, S1 had articulated a legitimate non-discriminatory
reason for her action. Specifically, S1 attested that complainant was
absent from his assignment for approximately one hour when S1 realized
his absence, and checked his clock rings, which she states revealed he
had clocked out for a thirty-minute lunch. S1 asserts that complainant
had not requested an extended lunch period, and therefore she deleted
complainant's clock rings, put in the proper times, and listed him AWOL
as referenced above. The FAD found that complainant had failed to prove
by a preponderance of the evidence that S1's proffered reasons for her
actions were a pretext for race discrimination.
Complainant has failed to submit any contentions on appeal. The agency
requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), we find that the agency erred in
its investigation as well as its method of analysis regarding whether
complainant established a prima facie case of race discrimination,
but nonetheless reached the correct result in this case.
The FAD erred in reasoning that complainant could only establish a prima
facie case if he identified comparator employees outside his protected
class who were treated more favorably than he was treated. While
comparative evidence is usually used to establish disparate treatment,
complainant need only set forth some evidence of acts from which,
if otherwise unexplained, an inference of discrimination can be drawn.
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). Moreover,
the FAD incorrectly states that complainant failed to identify any
employees outside his protected class whom he claims were treated more
favorably. Complainant's affidavit identifies by name two Black employees
whom he asserts "under similar circumstances . . . when assigned as allied
clerks under [S1], have not been forced to use annual leave." Neither
the report of investigation (ROI) nor the FAD makes no reference to these
comparison employees. Instead, the ROI and the FAD rely on the fact that
S1 identified two Black employees who she treated in the same manner as
complainant, i.e. their clock rings were deleted and they were charged
with AWOL when it was discovered that they were away from their assignment
without permission. Yet, while similar treatment of employees outside
of a complainant's protected class may be probative evidence, it is not
dispositive of whether or not a prima facie case is established or whether
discrimination is proven by a preponderance of the evidence. Where a
complainant attempts to use comparators to establish a prima facie case,
the fact that one or more comparators outside complainant's protected
class were treated the same as complainant will not automatically defeat
complainant's ability to establish a prima facie case, where there are
also comparators outside complainant's protected class who were treated
more favorably than complainant. Hill v. Equal Employment Opportunity
Commission, EEOC Appeal No. 01920537 (July 23, 1992).
Nonetheless, considering the entire record, the Commission agrees with
the agency that even assuming complainant established a prima facie case
of race discrimination, complainant failed to establish that more likely
than not, the agency's articulated reasons for its actions were a pretext
for discrimination. In reaching this conclusion, we note that even
if complainant adduced evidence that S1 permitted similarly situated
employees outside his protected class to be away from their assigned
posts without using leave time, the central facts of the instant complaint
remain in dispute. Specifically, complainant contends that he notified S1
of the circumstances occasioning his delayed lunch before departing, and
S1 assigned a casual employee to the allied position. Complainant further
alleges that upon returning from lunch, he notified the casual worker
that he was back, but could not locate S1, and proceeded to work for the
following one-half hour retrieving and setting up equipment in accordance
with normal procedure. By contrast, S1 contends that complainant was
absent from his assignment for approximately one hour and did not inform
her that he needed an extended lunch nor that he would be out of the unit.
S1 further asserts that when she checked the clock rings she found that
complainant had put in for a thirty-minute lunch, and since he did not
explain to her otherwise, she concluded he was off of his assignment
without permission. Since complainant did not request a hearing
before an Administrative Judge, this fundamental evidentiary dispute
remains unresolved, leaving the evidence in equipoise. Accordingly, the
Commission cannot conclude, even if complainant's proffered comparative
evidence had been established, that S1's explanation for her actions is
a pretext for race discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the FAD is AFFIRMED AS
CLARIFIED.
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:
January 6, 2000
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.