01981946
05-18-2001
Edward Witherspoon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Edward Witherspoon v. United States Postal Service
01981946
May 18, 2001
.
Edward Witherspoon,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01981946
Agency No. 1D-201-1012-96
Hearing No. 100-97-7270X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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 alleges he
was discriminated against on the basis of sex (male) when:
(1) On September 13, 1995, he received a seven day suspension for
failure to meet attendance requirements;
He was issued a Letter of Warning on October 4, 1995, for Work Performance
and Excessive time from Assignment;
He was issued two violation notices by Postal Police on October 9,
1995; and
He was harassed by a supervisor on October 9, 1997.
For the following reasons, the Commission AFFIRMS the agency's final
decision. The record reveals that complainant, a Clerk at the agency's
Washington, DC Processing and Distribution Center, filed a formal EEO
complaint with the agency on February 21, 1997, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of sex discrimination. Specifically, the AJ found that complainant
failed to demonstrate that similarly situated employees not in his
protected classes were treated differently under similar circumstances.
The AJ found that complainant was not treated differently than similarly
situated female employees because complainant failed to submit probative
comparative evidence. The AJ further determined that the agency
articulated legitimate, nondiscriminatory reasons for its actions. The AJ
found that complainant was warned, suspended and issued violation notices
because he had tardiness and attendance problems, was insubordinate,
and slept on the agency's premises. The AJ considered the limited
evidence submitted by complainant and concluded that complainant provided
insufficient evidence to call into question the agency's articulated
reasons as being a pretext to mask unlawful discrimination.
The agency's final decision (FAD) implemented the AJ's decision. The FAD
also addressed an issue the AJ neglected to address in her decision.
The agency concluded that complainant failed to establish a prima facie
case of harassment based on the alleged events of October 9, 1995.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final decision. After a careful review of the record,
the Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's sex. With regard to the finding that female employees were
not disciplined, we note that the investigative file contains exhibits
which demonstrate that each of the female employees complainant listed
as comparators have, in fact, been disciplined and suspended for their
poor attendance. We further note, with regard to the October 4, 1995,
letter of warning, complainant stated in his affidavit that it was not
true that he spent excessive time from his assignment, but fails to
support his position with evidence. Finally, with regard to the events
of October 9, 1997, complainant does not deny the charges which resulted
in him receiving violations from the postal police, but rather he states
that the citations would not have been issued without the interference
of a supervisor. If complainant violated postal procedures, then the
issuance of violations were appropriate. Moreover, the supervisor
in question denies speaking with postal police about complainant.
Complainant made accusations to the contrary, but offered no evidence
to support his position.
We discern no basis to disturb the AJ's decision. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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.
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
May 18, 2001
__________________
Date