01a01405
08-14-2002
Charles M. White v. United States Postal Service 01A01405 08-14-02 .Charles M. White, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles M. White v. United States Postal Service
01A01405
08-14-02
.Charles M. White,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01405
Agency No. 4C-190-1045-96
Hearing No. 170-98-8452X
DECISION
On November 26, 1999, Charles M. White (hereinafter referred to
as complainant) initiated a timely appeal to the Equal Employment
Opportunity Commission (Commission) with regard to his complaint of
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq; and
� 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq. The appeal is accepted by this Commission in accordance with
29 C.F.R. � 1614.405. Based upon a review of the record, and for the
reasons stated herein, it is the decision of the Commission to AFFIRM
the final agency action.
The issue on appeal is whether complainant proved, by a preponderance
of the evidence, that he was discriminated against on the bases of his
race (Caucasian), color (white), national origin (Polish, Irish, and
American), age (46), disability (fractured wrist, stress, hypertension,
gastrointestinal problems, sleep apnea, and depression), and in reprisal
for prior EEO activity (unspecified) when he was issued a 14-day
suspension on December 4, 1995, for failure to follow instructions,
and his requests for an independent route inspection were denied in
September, October, and December 1995.
Complainant filed a formal EEO complaint raising the above-referenced
allegations of discrimination. The agency accepted complainant's
complaint for processing, and conducted an investigation with regard
to the matter at issue. Following a hearing, an Administrative Judge
(AJ) issued a decision, finding that complainant was not subjected to
discrimination as alleged. Specifically, the AJ stated that, even
assuming that complainant was able to establish a prima facie case,
he failed to show that the agency's stated reasons for the actions
in question were a pretext for discrimination. The AJ noted that
complainant's supervisor testified that complainant blatantly failed to
follow instructions not to skip lunch and breaks despite being counseled
and instructed, in writing, not to do so. Further, the supervisor stated
that he could not grant complainant's request for a route inspection until
complainant corrected certain performance deficiencies. The AJ noted that
while it appeared complainant was attempting to challenge adjustments to
his route made in July 1995, there was no evidence that those changes,
to which the union provided input, were discriminatory. Subsequently,
the agency issued a final action implementing the AJ's decision. It is
from this decision that complainant now appeals.
After a careful review of the record, the Commission finds that the AJ
correctly determined that complainant was not subjected to discrimination
with regard to the matters at issue. The Commission notes that while
the AJ stated, in part, that complainant failed to establish a prima
facie case because he did not show that he was treated differently than
similarly situated employees, complainant must only present evidence
which, if unrebutted, would support an inference that the agency's
actions resulted from discrimination. See O'Connor v. Consolidated
Coin Caters Corp., 116 S.Ct. 1307 (1996); Enforcement Guidance on
O'Connor v. Consolidated Coin Caters Corp., EEOC Notice No. 915.002,
n. 4 (September 18, 1996).
Nevertheless, a review of the record shows that, even assuming that
complainant had established a prima facie case of race, color, national
origin, age, and disability discrimination or reprisal, he failed to show
that the agency's stated reasons for the actions were pretextual.<1>
As stated by the AJ, complainant repeatedly extended his route time,
and continued to skip lunches and breaks despite being instructed by his
supervisor not to do so. Further, complainant's supervisor indicated
that he could not grant complainant's request for an inspection until
complainant corrected certain performance deficiencies.<2> The Commission
finds no evidence in the record to show that the actions in question
were in any way related to complainant's race, color, national origin,
age, disability, or prior EEO activity. Accordingly, it is the decision
of the Commission to AFFIRM the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
__________________________________
Carlton M. Hadden, Director
Office of Federal Operations
_______08-14-02___________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1For purposes of this decision, the Commission assumes complainant is
an individual with a disability.
2Complainant indicated, on appeal, that his requests for an inspection
were the first step in obtaining the accommodation of job restructuring.
The record, however, fails to show that complainant ever advised
his supervisors that his inability to deliver his route was related
to a medical condition, or otherwise indicated that he was seeking
reasonable accommodation. As noted by the AJ, the record merely shows
that complainant was not satisfied with the adjustments to his route.