01982719
03-12-1999
Alex L. Ethridge, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alex L. Ethridge, )
Appellant, )
)
v. ) Appeal No. 01982719
) Agency No. 4E-852-1262-95
William J. Henderson, ) Hearing No. 350-97-8350X
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On February 20, 1998, Alex L. Ethridge (hereinafter referred to as
appellant) timely appealed the agency's final decision, dated January 21,
1998, concluding he had not been discriminated against in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. The final agency decision was issued on December 18, 1997.
Appellant had alleged that agency officials discriminated against him on
the basis of his race (African-American) when he was denied a transfer on
June 21, 1995. This appeal is accepted in accordance with the provisions
of EEOC Order No. 960.001.
The record establishes that appellant was hired by the agency on
August 31, 1988. On February 13, 1995, appellant submitted a formal
transfer request to the Postmaster at the Phoenix District Post Office.
Appellant requested a transfer from Cheyenne, Wyoming to Phoenix or
surrounding areas. During May or June 1995, appellant's transfer
request was reviewed by the agency and a determination was made that
his application was a �border line� case. In June 1995, appellant's
file was forwarded to agency offices in Phoenix and Glendale, Arizona.
On June 13, 1995, a supervisor in the Glendale Post Office denied
appellant's transfer request. On June 19, 1995, a supervisor in the
Phoenix Post Office denied appellant's transfer request. On June 21,
1995, appellant was notified by the Human Resources Specialist at the
Phoenix District Post Office that his request to be reassigned from
Cheyenne, Wyoming to the Phoenix District Office was disapproved based
on his safety and attendance records.
The record reveals that appellant filed a formal EEO complaint with the
agency on October 20, 1995, alleging that the agency had discriminated
against him as referenced above. The agency accepted the complaint and
conducted an investigation. At the conclusion of the investigation,
appellant requested an administrative hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ).
On November 26, 1997, pursuant to 29 C.F.R. �1614.109(e), the AJ issued
a decision without a hearing, finding that the agency had discriminated
against appellant on the basis of his race when he was denied a transfer.
Specifically, the AJ found that the agency produced conflicting testimony
concerning the events preceding the denial of the transfer request.
The AJ noted that the Human Resource Specialist testified in her affidavit
that neither the Personnel Office nor herself had any input into the
disapproval of appellant's reassignment request. According to the AJ,
the Human Resource Specialist also testified that the agency did not
have a written policy of hiring standards for city carrier reassignments
and that the agency considered the pattern of sick leave, i.e., sick
leave taken in conjunction with holidays and scheduled days off. The AJ
determined that the Senior Personnel Services Specialist testified in her
affidavit that the Personnel Office was specifically the area that handles
transfer requests and that they usually look for transfer applicants who
possess at least 80% of their potential sick leave. The Senior Personnel
Services Specialist also stated in a letter dated June 28, 1995, that
a determination was made by an unspecified individual that appellant's
transfer application was �borderline�, and as a result, his application
was forwarded to the Glendale and Phoenix Post Offices for consideration.
The AJ noted that the Supervisor of Customer Services testified in her
affidavit that transfer requests to Phoenix stations are approved if
the employee's file reflects a good safety record, good attendance, and
good work performance. According to the Supervisor of Customer Services,
appellant's transfer request was reviewed and denied by a supervisor at
the Glendale Post Office on June 13, 1995, a supervisor at a Phoenix
Post Office on June 19, 1995, and by herself at the Phoenix District
Post Office on September 14, 1995.
With regard to the agency's reliance on appellant's attendance and safety
records, the AJ found that the evidence demonstrated that these reasons
were a pretext for unlawful discrimination. The AJ noted that several
non-African American employees who submitted transfer requests around the
same time as appellant, were allowed to transfer to either the Phoenix
District Office or post offices in surrounding areas. The AJ observed
that many of these individuals possessed inferior sick leave balances or
had a worse safety record than appellant.<1> Finally, the AJ determined
that the agency in general utilized higher standards in evaluating the
transfer requests of African American employees. Based on all of these
factors, the AJ concluded that the evidence was sufficient to find that
the agency's articulated reasons for its denial of appellant's transfer
request were not credible and it was more likely than not that appellant
had been discriminated against on the basis of his race.
In a final decision dated January 21, 1998, the agency rejected
the findings and conclusions of the AJ, and entered a finding of no
discrimination. It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, including the
statements submitted on appeal, we find that the AJ's recommended decision
set forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws.
As the AJ correctly noted, appellant's complaint constitutes a claim of
disparate treatment which is properly analyzed under the three-tiered
analytical framework outlined in McDonnell Douglas v. Green, 411 U.S. 792
(1973). See also, Cooper v. Federal Reserve Bank of Richmond, 467
U.S. 867 (1984); U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715-716 (1983); Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253-256 (1981). Applying this legal standard,
the AJ properly concluded that appellant established a prima facie case
of race discrimination. Moreover, we find that the AJ was correct
in further finding that, although agency management articulated a
legitimate, nondiscriminatory reason for denying appellant's transfer
request (appellant's attendance and safety records), appellant proved,
by a preponderance of the evidence, that the agency's articulated reasons
for its actions in this matter lacked credibility and that its actions
were more likely motivated by discrimination. Nothing proffered by the
agency in its final decision or on appeal differs significantly from
the arguments raised before, and given full consideration by the AJ.
Accordingly, it is the decision of the the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the
AJ's finding of discrimination. In order to remedy appellant for its
discriminatory actions, the agency shall comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial actions:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to transfer appellant to a Post Office
in Phoenix or a surrounding area.
(B) Training shall be provided to the agency officials responsible
for the agency's actions in this matter on the obligations and duties
imposed by Title VII.
(C) The agency shall post at the Phoenix, Arizona, 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 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.
(D) 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 evidence that the corrective action
has been implemented.
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.
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.
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 (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:
March 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1Appellant possessed approximately
70% of his total earned sick leave and he had two accidents.
A caucasian male possessed approximately 15% of his total earned
sick leave and he had two accidents. An Asian female possessed
approximately 15% of her total earned sick leave and she had
no accidents. Another caucasian male possessed approximately
100% of his total earned sick leave but he had six accidents.
An additional caucasian male possessed less than 1% of his total
earned sick leave and he had one accident.