01981632
11-25-1998
Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Chris S. Hames v. United States Postal Service
01981632
November 25, 1998
Chris S. Hames,
Appellant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Areas),
Agency.
Appeal No. 01981632
Agency No. 4F-926-1145-95
-1244-95
-1299-95
Hearing No. 340-96-3562X
-3561X
-3469X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegation that the agency discriminated against him on the
bases of race (Caucasian) when he was denied the opportunity to eat at a
particular lunch location and reprisal (prior EEO activity) when he was
(1) subjected to repeated route checks, kept under constant surveillance,
and called a "slug" during a performance meeting, (2) denied overtime,
(3) told not to put parcels on the floor and to mind his own business, and
(4) denied continuation of pay after filing a CA-1, notice of traumatic
injury, in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. �2000e et seq. The Commission hereby accepts the
appeal in accordance with EEOC Order No. 960.001. For the following
reasons the FAD is AFFIRMED.
At the time of the alleged discriminatory events, appellant was employed
as a Carrier, PS-5, at the Covina Post Office, Covina, California. The
investigative record reveals that prior to the time in question, appellant
and his coworkers were allowed to eat at a certain restaurant that was
located beyond the distance permitted under the postal regulations.
In February 1995, appellant was informed that he was not permitted to
eat at the restaurant because it was beyond the one-mile round-trip
range prescribed by the regulations. While appellant asserted that
other employees were permitted to continue eating at the restaurant,
the record did not show that his supervisors were aware of this fact.
Moreover, the record reveals that other employees were informed of
the lunch-distance restrictions. The record further reveals that
similarly situated employees were observed concerning their performance.
Additionally, appellant was denied overtime during the temporary period
that he worked a higher level assignment at another facility because
agency regulations did not permit participation on the overtime desired
list at a duty station other than one's normal station. Further, none
of the employees were permitted to leave their parcels on the floor.
In all of the aforementioned instances, appellant failed to present
a similarly situated comparator that was treated more favorably.
Regarding appellant's claim that he was denied continuation of pay,
the record shows that he filled out the wrong form. Nevertheless,
appellant made no showing that he was penalized in any manner.
Believing that he was the victim of discrimination, appellant sought EEO
counseling and, thereafter, filed formal EEO complaints on May 1, June 27,
and August 3, 1995. The agency accepted the complaints for investigation
and complied with all of our procedural and regulatory prerequisites.
Subsequently, appellant requested a hearing before an EEOC Administrative
Judge (AJ) and the complaints were consolidated for review by the AJ.
Prior to the hearing, the AJ responded to the agency's motion for a
decision on the record. After consideration of the respective positions
of the parties, the AJ concluded that there were no issues of material
fact and granted the motion. Upon review of the record, the AJ issued
a Recommended Decision (RD) finding no discrimination. In her RD,
the AJ concluded that appellant failed to establish a prima facie case
of race or reprisal discrimination. Specifically, the AJ reasoned that
appellant either failed to show that he was treated less favorably than
similarly situated comparators or failed to show that he was subjected
to adverse treatment.
Thereafter, the agency adopted the RD and issued a FAD, dated November
19, 1997, finding no discrimination. It is from this agency decision
that appellant now appeals. On appeal, appellant asserts, among other
things, that the case should not have been decided on the record.
After careful review of the entire record, including 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. Further, the record fails
to support appellant's contentions on appeal. The Commission discerns
no basis to disturb the AJ's finding. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Nov 25, 1998
______________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations