01973569
04-02-1999
Warren E. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/ Mid West Areas) Agency.
Warren E. Smith v. United States Postal Service
01973569
April 2, 1999
Warren E. Smith, )
Appellant, )
)
v. ) Appeal No. 01973569
) Agency No. 4-J-460-1001-96
William J. Henderson, ) Hearing No. 240-96-5130X
Postmaster General, )
United States Postal Service, )
(Great Lakes/ Mid West Areas) )
Agency. )
________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had
not discriminated against him in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
C.F.R. � 621 et seq. In his complaint, appellant alleged that the agency
discriminated against him on the bases of race (African-American), color
(dark complexion), and age D.O.B. (5/3/48), when he was discharged during
his probation. This appeal is accepted by the Commission in accordance
with EEOC Order No. 960.001.
Appellant was employed by the agency as a Part-Time Flexible (PTF)
mail carrier at the Carmel, Indiana post office.
Following an investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) administrative judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
The AJ found that appellant failed to establish a prima facie case of
race, color and age discrimination. The AJ determined that appellant did
not satisfy his basic job requirements. Furthermore, appellant failed
to show any similarly situated employee(s), outside of his protected
group(s), who constantly did not satisfy his or her job requirements,
but was not discharged. Assuming that appellant had established a prima
facie case of race, color and age discrimination, the AJ concluded that
the agency articulated a legitimate, nondiscriminatory reason for its
action, which appellant failed to establish as pretextual. Specifically,
appellant was not able to timely deliver the mail, despite being provided
with remedial training. Additionally, in order to increase his delivery
time, on a regular basis he was permitted to work on the same assignments,
and a customer service representative accompanied him on his route.
On March 10, 1997, the agency issued a final decision, adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's RD sets forth the relevant facts, and properly
analyzes the appropriate regulations, policies, and laws applicable
to appellant's complaint as a disparate treatment claim. Therefore,
the Commission discerns no basis in which to disturb the AJ's finding
of no discrimination. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
finding no discrimination.
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. � 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 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. 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 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:
April 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations