01a03331
07-06-2000
Ronald Q. Hodges v. United States Postal Service
01A03331
July 6, 2000
Ronald Q. Hodges, )
Complainant, )
)
v. ) Appeal No. 01A03331
) Agency No. 4A117003197
William J. Henderson, ) Hearing No. 160-98-8358X
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Complainant timely filed an appeal from the agency's final decision
in the above entitled matter. The appeal is accepted in accordance
with 64 Fed.Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).<1>
The issue on appeal is whether complainant was discriminated against
on the basis of his race (Black) when: (1) on November 2, 1996, he was
not allowed to work in his primary area on his non-scheduled day; and,
(2) he learned that his co-worker had been allowed to work Sundays for
the past five years and received overtime for this work.<2>
The EEOC administrative judge (AJ) found that a hearing in complainant's
case was not necessary because there were no genuine issues of material
fact in dispute between the parties. The AJ found that complainant
failed to establish a prima facie case of race discrimination because he
failed to show that there were similarly situated White employee(s) who
were treated more favorably in essentially the same circumstances. The
AJ also concluded, that in any case, the agency articulated legitimate,
nondiscriminatory reasons for its actions, specifically, that overtime was
assigned in accordance with the needs of the service. The AJ noted the
Postmaster's testimony that complainant was assigned duties and offered
overtime in accordance with his bid award and assigned days of rest.
Finally, the AJ found that complainant submitted no persuasive evidence
that his race was a motivating factor in the assignments he was given.
After a careful review of the record, the Commission finds, initially,
that the AJ correctly concluded that a decision could be issued without a
hearing. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We agree with the AJ that complainant failed to present evidence that
the agency's actions were motivated by discriminatory animus towards
complainant because of his race. Therefore, after a careful review of
the record, including complainant's contentions on appeal and including
arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
07-06-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed.Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant appears to state on appeal that he has been subjected to
instances of discrimination other than those alleged in the formal EEO
complaint herein. He must initiate EEO counseling regarding any new
allegations within 15 days after he receives this decision, if he wishes
to pursue them and he has not already done so. The agency is advised
that if complainant seeks EEO counseling regarding any new allegations
raised on appeal within the above 15-day period, the date complainant
filed the appeal statement in which he raised these allegations shall
be deemed to be the date of the initial EEO contact, unless complainant
previously contacted an EEO Counselor regarding these matters. If there
has been a previous contact, the earlier date would serve as the EEO
Counselor contact date. Qatsha v. Department of the Navy, EEOC Request
No. 05970201 (January 16, 1998); Parker v. Department of the Army. EEOC
Request No. 05960025 (August 29, 1996).