01976405
08-20-1999
Kevin Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid-West Region),) Agency.
Kevin Brown, )
Appellant, )
) Appeal No. 01976405
v. ) Agency No. 1-I-531-1115-95
) Hearing No. 260-97-9102X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid-West Region),)
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) 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.
Appellant alleges that he was discriminated against on the bases of
race (Black) and sex (male) when he was issued a seven day suspension
for irregular attendance<1> and was not informed by management that he
could have requested leave under the Family Medical Leave Act (FMLA) for
absences cited in the discipline. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
The record reveals that appellant, a Mail Processor at an agency facility
in Milwaukee, Wisconsin, filed a formal EEO complaint on October 9,
1996, alleging discrimination as referenced above. At the conclusion
of the investigation, appellant requested a hearing before an EEOC
Administrative Judge (AJ). Upon the agency's motion and pursuant to 29
C.F.R. � 1614.109(e), the AJ issued a Recommended Decision (RD) without
a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case of
discrimination because he did not demonstrate that a similarly situated
employee outside of his protected classes was treated more favorably.
Assuming arguendo that appellant had established a prima facie case
of discrimination, the AJ concluded that the agency articulated a
legitimate, nondiscriminatory reason for the suspension, namely that
appellant did not maintain his assigned work schedule and did not
comply with FMLA requirements. The AJ concluded that appellant failed
to present evidence that the agency's explanation was a pretext for
unlawful employment discrimination.
The agency's FAD adopted the AJ's RD. On appeal, appellant contends that
the AJ erred in issuing a RD rather than pursuing an alleged settlement
offer and in not examining the FMLA guidelines. The agency requests
that we affirm its final decision.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), we find that appellant failed to identify
a similarly situated employee outside of his protected classes who was
treated more favorably either in regard to: (1) being disciplined for
comparable attendance problems; or (2) being informed of the option to
request leave under the FMLA. Since appellant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
towards appellant's race or sex, we discern no basis to disturb the AJ's
findings of no discrimination. Therefore, after a careful review of
the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
August 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 Appellant was originally issued a
fourteen day suspension which was subsequently reduced through
the grievance process.