01995392
01-10-2001
Bernard E. Oginski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.
Bernard E. Oginski v. United States Postal Service
01995392
January 10, 2001
.
Bernard E. Oginski,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes Area)
Agency.
Appeal No. 01995392
Agency No. 1-J-483-0019-98
DECISION
Complainant timely initiated an appeal from a final agency decision
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405.<1> Complainant alleges that he was discriminated
against on the bases of race (White), sex (male), and in retaliation
for prior protected activity arising under Title VII when he received
a Letter of Warning which resulted in his being denied his merit and
Economic Value Added (EVA) pay for fiscal year 1997. For the following
reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Supervisor, Distribution Operations at the agency's Detroit, Michigan
Processing and Distribution Center. Believing the agency discriminated
against him as referenced above, complainant sought EEO counseling
and subsequently filed a formal complaint on March 12, 1998. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or, alternatively,
to receive a final decision by the agency. When complainant failed to
respond within the requisite regulatory time period, the agency issued
a final decision. It is from this finding of no discrimination which
complainant now appeals.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, (1981), the Commission agrees with the agency that complainant
failed to establish a prima facie case of race or sex discrimination
because he failed to identify a similarly situated employee, outside
of his protected classes, who was treated more favorably under similar
circumstances. On appeal, complainant renames a Black, male Supervisor
whom he believes was treated more favorably, but there is no evidence,
beyond complainant's uncorroborated accusation, that this Supervisor
failed to discharge his duties properly. In light of the fact that
other Supervisors outside of complainant's protected classes were also
disciplined and denied merit and EVA pay in 1997, we decline to infer
a discriminatory motive based on race or sex. Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The Commission also finds
that complainant failed to establish a prima facie case of reprisal
discrimination because there is insufficient evidence of a causal
connection between his prior protected activity and the discipline
at issue. See Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases).
Even assuming arguendo that complainant established a prima facie case
of discrimination or retaliation, the agency articulated a legitimate,
nondiscriminatory reason for its discipline, namely that complainant,
who had notice of past performance deficiencies, failed to properly
discharge his duties. As a result, he received a Letter of Warning and an
Unacceptable performance rating which caused him to be excluded from his
merit and EVA pay in 1997. The record contains ample documentation of his
performance problems. Outside of his bare assertion that he discharged
his duties properly, complainant did not rebut the agency's evidence.
Accordingly, we find that complainant failed to establish that the
agency's explanation was a pretext for unlawful 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, we affirm the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 10, 2001
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.