01974728
11-24-1998
Stephen E. Gaspar, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Stephen E. Gaspar v. United States Postal Service
01974728
November 24, 1998
Stephen E. Gaspar, )
Appellant, )
) Appeal No. 01974728
v. ) Agency No. 1H-372-1011-96
) Hearing No. 250-96-8279X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning his
allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C.�2000e et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issue presented is whether appellant proved, by a preponderance of the
evidence, that he was discriminated against because of his race (White)
and sex (male) when he did not receive a transfer to the Chattanooga,
Tennessee Post Office in 1991.
At the time of his complaint, appellant was employed by the agency as
a Mailhandler, having been transferred to the Chattanooga Post Office
after making a second request in 1995. Believing that he was a victim
of discrimination when he discovered that a WF and a Black male (BM)
had been transferred or hired in December 1991, after he had requested a
transfer in April 1991, appellant sought EEO counseling and later filed
a formal EEO complaint dated February 2, 1996.
The agency complied with all procedural and regulatory prerequisites,
and on February 19, 1997, the EEOC Administrative Judge (AJ) issued
a Recommended Decision (RD). The AJ found discrimination based on
race and sex, since the agency was unable to articulate a legitimate,
nondiscriminatory reason why two persons not in appellant's protected
groups were transferred or hired, while appellant was not, over
seven months after appellant had formally requested a transfer.
Subsequently, the agency issued its own final decision, concluding
that no discrimination had occurred because, among other things, it
found that the person who approved agency transfers (since retired)
had no way to determine appellant's race.
On appeal, appellant contends that the person who approved transfers
would have been aware of his race if she had complied with agency
regulations and requested a copy of his Official Personnel Folder (OPF).
He added that on December 5, 1995, he learned from the White Female
(WF) who was transferred in December 1991 that she was transferred only
"a couple of months" after she had submitted her request. In contrast,
appellant had submitted his own transfer request in April 1991, four
or five months earlier, but still had not been transferred. The agency
did not respond to appellant's contentions on appeal.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of discrimination.
We note that the AJ found that the WF had requested a transfer months
after appellant did, as the latter contended, and that the BM was hired
after appellant's request was on file and still active. She therefore
found that appellant had established a prima facie case of discrimination
based on sex and race. Since the agency was unable to articulate a
legitimate, nondiscriminatory reason for hiring the BM and granting the
WF's request for a transfer while not granting appellant's request, which
had been on file months earlier, the AJ found that discrimination on the
basis of sex and race had been proven. In this regard, the Commission
has previously held that a agency's failure to articulate a legitimate,
nondiscriminatory reason for an adverse action will result in a finding
of discrimination. Coleman and Brooks v. United States Postal Service,
EEOC Request No. 05930626 (May 19, 1994).
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
the Commission REVERSES the FAD and enters a finding of discrimination
against the agency, as previously determined by the AJ. The complaint
is hereby REMANDED to the agency for further processing in accordance
with this decision, the following Order, and the subsequent paragraphs
preceding the Statement of Rights on Appeal.
ORDER (C1092)
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) days of the date of receipt of this decision,
the agency shall adjust appellant's seniority date in the Chattanooga,
Tennessee Post Office to reflect a date prior to that of the black male
and white female who were hired or transferred before him. Appellant is
then to be given all benefits arising out of his adjusted seniority date.
2. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Chattanooga, TN Post Office copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 24, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated __________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at the Chattanooga, Tennessee
Post Office (hereinafter "facility").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, compensation, promotion,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The facility was found to have discriminated against an employee at this
facility on the basis of race (White) and sex (male) by not granting
his initial request for a transfer. It has remedied the employee
affected by the Commission's finding by retroactively adjusting his
seniority date to a date prior to that of two employees not in his
protected groups who were found to have been discriminatorily hired or
transferred before him. In addition, it has given this employee all the
benefits arising out of his adjusted seniority date. The facility will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all Federal
equal employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614