01a04066
02-06-2001
Edward McClellan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Edward McClellan v. United States postal Service
01A04066
February 6, 2001
.
Edward McClellan,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04066
Agency No. 1H-378-0036-97
Hearing No. 250-99-8205X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against on the bases of race (Black) and reprisal (prior
EEO activity) when, on August 18, 1997, management took no action when
made aware that a co-worker (Co-worker) assaulted him. For the following
reasons, the Commission affirms the agency's final decision.
The record reveals that complainant, a mail processor at the agency's
Knoxville, Tennesse plant, filed a formal EEO complaint with the agency
on November 12,1997, alleging that the agency had discriminated against
him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). On March 28, 2000,
complainant notified the AJ that he wished to have a final agency decision
(FAD).<2> The AJ remanded the case to the agency on March 29, 2000,
with instructions to issue a FAD.
The agency found that complainant failed to establish a prima facie
case of discrimination based on race because he failed to identify
any similarly situated employees of another race who were treated more
favorably. The agency also found that complainant failed to establish a
prima facie case of discrimination based on reprisal. The agency found
that complainant failed to show a casual connection between his prior
EEO activity and the incident alleged to be discriminatory.
The agency further concluded that management articulated legitimate,
nondiscriminatory reasons for its actions. The agency noted that the
Manager, Distribution Operations (RO1) averred that he called complainant
and the Co-worker into a room immediately after the altercation to discuss
the situation and complainant failed to mention that the Co-worker touched
him in any manner. The Supervisor, Distribution Operations (RO2),also
present in the room, provided two statements: a written statement on
October 15, 1997, stating that at no time during complainant's explanation
of the event did he state that the Co-worker threatened or touched him,
and an affidavit on April 1, 1999, in which he averred that complainant
stated that the Co-worker put his hand on him. The agency stated in its
FAD that it put more credence on RO2's statement made shortly after the
incident than on his affidavit filed two years later. The agency also
noted that the Co-worker was given an official discussion for his part in
the incident. The agency found that complainant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination/retaliation.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final decision.
After a careful review of the record, we find that complainant failed
to present any evidence that the agency's actions were in retaliation
for his prior EEO activity or were motivated by discriminatory animus
toward his race. Complainant filed a prior complaint on August 7,
1996, a year prior to the present alleged discrimination. The record
contains no information regarding any other EEO activity. We note
that RO1 and RO2 both averred that they were unaware of his prior
EEO activity. Assuming arguendo, that complainant stated a prima
facie case of discrimination on either basis, we find that the agency
articulated legitimate, nondiscriminatory reasons for its action;
namely that complainant did not state at the time that the Co-worker
touched him. We also note that the agency took disciplinary action
against the Co-worker. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 6, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.
2 In his letter, complainant states that he wishes to consolidate the
instant case with two others and file in district court. There is no
indication in the record that complainant so filed.