01A05180
03-29-2001
Dale Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Great Lakes Area, Agency.
Dale Smith v. United States Postal Service
01A05180
March 29, 2001
.
Dale Smith,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Great Lakes Area,
Agency.
Appeal No. 01A05180
Agency No. 1-J-602-0075-99
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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. Complainant alleged that he was discriminated
against on the bases of race (Black) and sex (male) when he was harassed
and threatened between March 5, and June 15, 1999, and removed from
employment effective August 7, 1999.
The record reveals that during the relevant time, complainant was
employed as a Full Time Mail Handler, PS Level 4, at the agency's
Palatine Processing and Distribution Center, Palatine, Illinois.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on October 22, 1999.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race and sex discrimination in that he failed to
demonstrate that he was treated less favorably than similarly situated
employees outside of his protected class.
On appeal, complainant makes no substantive arguments concerning the
merits of his case. The agency requests that we affirm its FAD.
Complainant began duty with the Postal Service on May 30, 1984.
On September 18, 1997, he signed a �last chance� settlement agreement
in which he agreed to maintain satisfactory attendance, defined as �no
more than three unscheduled absences during any six month period during
the life of the agreement, and no instances of AWOL.� The agreement was
to last two years. Unscheduled absences were defined as �any absence
which is not requested and approved in advance, (tardies, emergency
leave, annual and/or sick).� Between September 9, 1998 and February 3,
1999, complainant had six attendance infractions, including one AWOL.
In addition, he was absent from February 10, 1999 through June 1, 1999.
On March 2, 1999 he was issued a proposed notice of removal, based on his
infractions from September 1998 to February 3, 1999. Having apparently
not received the notice of removal, he reported to work on June 1, 1999
and was informed that he had been removed from employment. However,
as it was determined that the notice of removal had been sent to the
wrong address, it was rescinded and he was reissued another notice of
proposed removal on June 11, 1999. On July 29, 1999, he was notified
that his removal would become effective August 7, 1999.
On October 22, 1999, complainant filed a formal EEO complaint stating
that the agency had allowed co-workers to harass and intimidate him by
threatening to put sand in the gasoline tank of his vehicle. He further
stated that he had been terminated for violating the terms of the �last
chance� agreement but that it was in fact the agency who violated the
agreement by not honoring his requests for leave between February 10
and June 1, 1999, to attend to his wife who was undergoing complications
with her pregnancy. He essentially contended that such agency actions
were due to his race and sex. He reiterated these allegations in a
statement dated March 23, 2000. He further stated that although he
did not qualify for leave under the Family and Medical Leave Act, his
supervisor had told him that his request for leave would be honored.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662
F.2d 292, 310 (5th Cir. 1981), the Commission agrees with the agency
that complainant failed to establish a prima facie case of race and sex
discrimination. In order to establish a prima facie case, a complainant
may show that he is a member of a protected class, that he was subjected
to adverse treatment, and that he was treated differently than otherwise
similarly situated employees outside of the protected class. See Potter
v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975).
Complainant, however, has not identified any other similarly situated
employees outside of his protected class who received more favorable
treatment.
As regards complainants claim of harassment, the Commission notes that
all of the incidents complained of are untimely under EEOC regulations.
According to his March 23, 2000 affidavit, the most recent incident
allegedly occurred two days after complainant returned to work on June
1, 1999. Additional incidents reportedly occurred in 1998 and 1995.
As complainant first contacted an EEO counselor on August 12, 1999,
all of these incidents fall outside of the 45 day time limit under
EEOC regulations.
We further note that complainant's allegation that the agency violated
the terms of the �last chance� settlement by not permitting him family
leave between February 10 and June 1, 1999, during and after his wife's
pregnancy, even though his supervisor told him his request for family
leave would be honored, is not germane to his claim of discrimination.
While it is unclear from the record whether complainant's leave requests
during this period were �honored� by the agency, the fact remains that
complainant took the leave, and, contrary to his assertion, he was
not terminated for doing so. According to the June 15, 1999 letter
of proposed removal, complainant was terminated for six violations
that occurred between September 1998 and February 2, 1999, including
one instance of being AWOL on January 26, 1999, all of which occurred
before he took family leave. Complainant has not alleged that these six
violations either did not occur, or that the agency's response to them
was a pretext for 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 FAD.
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
March 29, 2001
__________________
Date