01975504
09-07-1999
Charles S. Schott, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas) Agency.
Charles S. Schott, )
Appellant, )
)
v. ) Appeal No. 01975504
) Agency No. 4G-752-1161-95
William J. Henderson, ) Hearing No. 310-96-5550X
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas) )
Agency. )
)
DECISION
Appellant timely initiated an appeal from the final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Caucasian), reprisal
(prior EEO activity), and age (D.O.B: 11/3/46), 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 U.S.C. � 621 et seq. In his complaint, appellant alleged
that the agency discriminated against him when he was terminated as a
probationary part-time flexible (PTF) city carrier at the Richardson,
Texas Post Office. This appeal is accepted by the Commission in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's final decision is AFFIRMED.
Following an investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) administrative judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD),
finding no discrimination. On June 11, 1997, the agency issued a final
decision, adopting the AJ's findings of no discrimination. It is from
this decision that appellant now appeals.
The AJ concluded that appellant failed to establish prima facie cases
of reprisal, race and age discrimination. Regarding reprisal, the
AJ found that there was no inference of a nexus between appellant's
prior EEO activity in 1995 and his termination, effective February 2,
1996. With respect to race and age discrimination, appellant did not
provide any evidence that similarly situated probationary employees,
outside of his protective classes, had similar performance problems
and were treated differently under similar circumstances when he was
discharged. Assuming that appellant had established prima facie cases
of reprisal, race and age discrimination, the AJ concluded that the
agency articulated legitimate nondiscriminatory reasons for appellant's
discharge. Appellant was discharged because he failed to satisfactorily
perform the duties of his position. Furthermore, appellant received
the same initial training as all other PTF carriers, and he was given
feedback and instructions, as well as additional training. Additionally,
appellant was hostile towards instruction, and his work did not improve.
The AJ found that appellant failed to establish that the agency's
articulated reasons were pretextual. Appellant did not provide any
evidence that he was able to perform the duties of his position.
Also, appellant failed to show that he received less training or was
held to stricter standards than other probationary PTF employees.
On appeal, in addition to restating arguments previously made at the
hearing, appellant contends that he was subjected to hostile work
environment harassment when several supervisors openly demeaned him
on the work room floor. The Commission finds that this hostile work
environment issue is a new allegation, and that appellant can not raise
it for the first time on appeal. Appellant is advised that if he wishes
to pursue, through the EEO process, this additional allegation, he must
contact an EEO counselor within 15 days after he receives this decision.
The Commission advises the agency if appellant seeks EEO counseling
regarding this new allegation within the above 15 day period, the date
appellant filed the appeal statement in which he raised this allegation
shall be deemed the date of initial EEO contact (i.e. August 5, 1997),
unless he previously contacted a counselor regarding this matter, in
which case the earlier date shall serve as the EEO counselor contact date.
Cf. Qatasha v. Navy, EEOC Request No. 05970201 (January 16, 1998).
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. Therefore, the Commission discerns no basis to
disturb the AJ's findings 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:
9/07/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations