01971229
11-23-1998
Douglas Moorehead, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/ Southwest Area), Agency.
Douglas Moorehead v. United States Postal Service
01971229
November 23, 1998
Douglas Moorehead, )
Appellant, )
)
)
v. ) Appeal No. 01971229
) Agency No. 4H-390-1017-94
) Hearing No. 130-96-8015-X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/ Southwest Area), )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission 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, as amended, 42 U.S.C. �2000e et seq. The final agency decision was
dated November 13, 1996. The appeal was postmarked November 22, 1996.
Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether appellant has established by a
preponderance of the evidence that the agency discriminated against him
on the bases of race (Black) when on November 6, 1993, he was informed
that he would not be reappointed as a transitional employee.
BACKGROUND
In a complaint dated January 13, 1994, appellant, then a transitional
employee ("T.E.") of the agency, alleged that the agency discriminated
against him as delineated in the above-entitled statement "Issue
Presented." The agency conducted an investigation, provided appellant
with a copy of the investigative report, and advised appellant of his
right to either request a hearing before an EEOC administrative judge
(AJ) or an immediate final agency decision (FAD). Appellant requested a
hearing. A hearing was held, and thereafter the AJ issued a recommended
decision finding that no discrimination occurred when the agency did
not re-appoint appellant. On November 13, 1996, the agency adopted the
findings of the AJ in his recommended decision ("RD") and issued a FAD
finding no discrimination. It is from this decision that the appellant
now appeals.
The hearing was held before an AJ on July 15, 1996. During the hearing,
five witness provided testimony, and relevant documentary evidence
was submitted. The following findings of fact were made by the AJ,
and are submitted in summary form. On November 14, 1992, appellant was
appointed to a T.E. position. Appellant's appointment was scheduled to
expire on November 7, 1993. On October 26, 1993, appellant was informed
by the Postmaster that he would be removed from the payroll on November
6, 1993, as his appointment was expiring. Transitional employees are
not entitled to automatic re-appointments.
Appellant sought EEO counseling on November 10, 1993, alleging that
he had been discriminated against on the bases of race and color when
the agency denied his re-appointment. The agency's EEO investigation
identified six employees as being similarly situated to appellant.
However, the AJ determined that only one employee met the requirements
of being similarly situated to appellant.
Appellant contends that he met the normal duties of his position, but was
treated differently based on his race and color. He claims that remarks
were made by the supervisor of customer service concerning appellant's
bi-racial identity; his dislike of appellant; and his expertise in EEO
matters.
The agency contends that appellant was not re-appointed based on
documented poor attendance, and attitude problems, whereby appellant
failed to follow the directions of management.
ANALYSIS AND FINDINGS
This case involves a complaint of employment discrimination based on
race (Black) and color (bi-racial- light skinned). To prevail on a
claim of unlawful employment discrimination, appellant must prove that
a prohibited consideration was a factor in an adverse employment action.
McDonnel Douglas Corporation v. Green, 411 U.S. 792 (1973). In order to
establish a claim of discrimination a complainant must first establish a
prima facie case of employment discrimination. The burden then shifts
to the employer to articulate a legitimate, non-discriminatory reason
for taking the challenged action. The burden then shifts back to the
complainant to show that the employer's articulation is mere pretext. Id.
At all times the burden of persuasion remains with the complainant to
prove that the agency intentionally discriminated against the appellant.
St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993).
Appellant must demonstrate by a preponderance of the evidence that:
(1) he is a member of a protected class; (2) he was qualified for the
T.E. position; (3) he was performing the normal duties associated with
the T.E. position; (4) despite the foregoing, he was not re-appointed
to the T.E. position; or (5) in the alternative, similarly situated
employees, outside the protected classes performed in the same or similar
manner as appellant, but were re-appointed as T.E.s. McDonnel Douglas
Corporation v. Green, supra.
During the hearing, both parties stipulated to element one of the prima
facie case, finding that appellant was a member of a protected class.
In addition, the AJ found that appellant was bi-racial, substantiating
his claim that he was being discriminated on the basis of his color
(lighter skinned).
The parties also stipulated that appellant was qualified for the position,
element two. The AJ found that appellant's assertion that he was meeting
the normal requirements of the position, was sufficient to establish
the third element of appellant's prima facie case. Evidenced by letter
dated October 26, 1993, appellant was not re-appointed as a T.E.,
satisfying the evidentiary requirements of the fourth element.
The AJ found that the agency articulated a legitimate non-discriminatory
reason for not re-appointing appellant. Namely, the agency demonstrated
that appellant was not re-appointed based upon documented attendance
problems, and attitude problems referring to instances where appellant
failed to follow management's directions.
Furthermore, the AJ found that appellant failed to demonstrate by a
preponderance of the evidence that the reasons set forth by the agency
were mere pretext. The EEOC has repeatedly held that all relevant aspects
of appellant's employment situation have to be nearly identical to those
of comparative employees. See Jones v. Department of the Interior,
EEOC Request No, 05950175 (June 7, 1996). In his analysis, the AJ
found that during the relevant time period, the only employee similarly
situated to appellant, was employee D.S., a darker skinned Black, who
was re-appointed as a T.E. The AJ determined that employees B.C. (White)
and V.G. (White) were hired to career positions, before the expiration of
their T.E. appointments. Therefore, they were not similarly situated to
appellant, as they were not in a position to be re-appointed as T.E.s.
Employees M.J. (light skinned Black) and D.S. (dark skinned Black)
were terminated for cause prior to their scheduled re-appointments and
therefore were not similarly situated to appellant.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant fact
and properly analyzes the appropriate regulations, policies, and laws.
The Commission discerns no basis to disturb the AJ's finding of no
discrimination. The AJ found that the decision not to re-appoint
appellant was based on his attendance record. Furthermore, after
observing the demeanor of the Agency witnesses and reviewing the record,
the AJ revealed no animus toward appellant based on his race and/or
color. Appellant alleges that unlike other similarly situated employees,
appellant was denied re-instatement as a T.E. based on his race and
bi-racial coloring. The evidence reveals however, that appellant has
failed to remotely show a disparity in treatment with the one similarly
situated employee. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision.
CONCLUSION
Based upon a through review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision and find that appellant had failed
to prove by a preponderance of the evidence, that he was discriminated
against on the bases of race and color, as alleged.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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 23, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations