01972576
02-22-1999
Charles Harrison, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.
Charles Harrison v. United States Postal Service
01972576
February 22, 1999
Charles Harrison, )
Appellant, )
)
v. ) Appeal No. 01972576
) Agency No. 4G-760-1210-95
William J. Henderson, ) EEOC No. 310-96-5256X
Postmaster General, )
United States Postal Service )
(S.E./S.W. Areas), )
Agency. )
______________________________)
DECISION
Appellant timely appealed the agency's final decision that it had
not discriminated against him in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. The
Commission accepts the appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal EEO complaint alleging discrimination on the
basis of physical disability (rotator cuff), when on or about May 24,
1995, he became aware that his route had been significantly reduced
and when he was prevented from carrying his route upon return to work.
Following the agency's investigation, appellant requested a hearing before
an EEOC administrative judge. Finding that there were no material facts
in dispute, on October 10, 1996, the AJ issued a Recommended Decision
pursuant to 29 C.F.R. � 1614.109(e)(3), finding no discrimination.
The record reveals that appellant, as PS-5 Rural Carrier, had his route
adjusted in June 1995 from 48K to 44K. Furthermore, the AJ found it
was undisputed that almost all of the routes were adjusted prior to
appellant's route. In his decision, the AJ found that appellant had
failed to establish a prima facie case of discrimination in that he
failed to establish that he had been treated less favorably than any
other employee when his route was adjusted. In fact, the AJ found
that appellant was treated more favorably than others, in that their
routes were adjusted two times before appellant's had been adjusted
one time. In sum, the AJ found that appellant had failed to prove, by
a preponderance of the evidence, that appellant had been discriminated
against, as alleged.
On December 30, 1996, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
As appellant's complaint constitutes a claim of disparate treatment,
the agency properly analyzed it under the three-tiered analytical
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981);
Prewitt v. U.S. Postal Service, 622 F.2d 292, 305 n. 19 (5th Cir. 1981).
Applying this legal standard to appellant's complaint, the Commission
finds that, assuming arguendo, that appellant established a prima facie
case, the agency articulated a legitimate nondiscriminatory reason for
the actions at issue. Specifically, the Postmaster testified that most
routes were adjusted in 1993 or 1994 in an effort to adjust overburdened
routes and eliminate unproductive travel, and that appellant's route
was saved for last.
After a careful review of the record, the Commission finds that appellant
failed to establish that the agency's reasons for its actions were
pretext for discrimination. We note appellant has not raised any new
contentions on appeal. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
that it did not discriminate against appellant, as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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. �1614.604(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. 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 (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:
February 22, 1999
___________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations