Willie R. Roberts, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwestern Areas), Agency.

Equal Employment Opportunity CommissionMay 30, 2000
01974884 (E.E.O.C. May. 30, 2000)

01974884

05-30-2000

Willie R. Roberts, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwestern Areas), Agency.


Willie R. Roberts, Jr. v. United States Postal Service

01974884

May 30, 2000

Willie R. Roberts, Jr.,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Great Lakes/Midwestern Areas),

Agency.

Appeal No. 01974884

Agency No. 1-J-603-1090-95

Hearing No. 210-97-6024X

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission or EEOC) from a final agency decision (FAD)

concerning his complaint that the agency discriminated against him

on the basis of race (African American), in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

Complainant alleged discrimination when on May 11, 1995, his request for

waiver of indebtedness (waiver) was denied by the agency's Minneapolis

Information Service Center. The Commission hereby accepts the appeal

in accordance with 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified

at 29 C.F.R. � 1614.405). For the following reasons, the FAD is AFFIRMED.

At the time of the alleged discriminatory event, complainant was

employed as a Custodial Laborer, Level 3, Step AA. Believing that he

was the victim of discrimination, complainant sought EEO counseling

and, thereafter, filed a formal EEO complaint. The agency accepted the

complaint for investigation and complied with all of our procedural and

regulatory prerequisites. Subsequently, complainant requested a hearing

before an EEOC Administrative Judge (AJ). Upon informing the parties

of his intention to issue findings and conclusions without a hearing and

permitting an appropriate time for response, the AJ issued a Recommended

Decision (RD) finding no discrimination. See 29 C.F.R. � 1614.109(e).

In his RD, the AJ concluded that while complainant established a

prima facie case of race discrimination, he failed to show that the

agency's actions were pretextual. Specifically, the AJ reasoned that

complainant failed to rebut the agency's legitimate, nondiscriminatory

reason for denying his waiver request. Thereafter, the agency adopted

the RD and issued a FAD, dated May 9, 1997, finding no discrimination.

It is from this agency decision that complainant now appeals. On appeal,

complainant reiterates previously submitted contentions.

The investigative record reveals that complainant was hired as a custodial

Laborer, level 3, Step AA, at a salary of $20,321.00. However, the

agency's personnel office issued PS-Form 50 "Notification of Personnel

Action" forms to complainant and a number of comparative employees that

inadvertently listed the appointments as Step A, $22,643.00 positions.

The personnel office informed complainant, as well as comparative

employees, of the salary errors and indicated the amounts that the

employees were overpaid and owed to the agency. The agency also informed

the employees that they could submit a "Request for Waiver of Claim

for Erroneous Payment of Pay." In this regard, the record shows that

complainant failed to submit his request for waiver in a timely fashion.

Furthermore, while the agency permitted requests for reconsideration of

denials, complainant again failed to submit the appropriate request in

a timely fashion.

After careful review of the entire record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, the Commission finds that the AJ's RD

sets forth the relevant facts, and properly analyzes the appropriate

regulations, policies and laws. The Commission discerns no basis to

disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 30, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.