William Lipcsey, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Areas), Agency.

Equal Employment Opportunity CommissionJan 6, 2000
01981884 (E.E.O.C. Jan. 6, 2000)

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.