Kevin Brown, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid-West Region),) Agency.

Equal Employment Opportunity CommissionAug 20, 1999
01976405 (E.E.O.C. Aug. 20, 1999)

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.