01976618
06-21-1999
Ely Gassoway, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Ely Gassoway, )
Appellant, )
)
v. ) Appeal No. 01976618
) Agency No. 4F-946-1004-95
William J. Henderson, ) Hearing No. 370-96-X2263
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
On December 27, 1996, Ely Gassoway (appellant) timely appealed the
final decision of the United States Postal Service (agency), dated
December 12, 1996, 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. In his complaint, appellant alleged that he had
been discriminated against on the basis of his race (African American)
and sex (male) when, on October 5, 1994, an Asian male supervisor kicked
him in the upper thigh and no action was taken by upper-level management.
This appeal is accepted in accordance with the provisions of EEOC Order
No. 960.001.
At the time this matter arose, appellant was employed by the agency
at its Oakland, California, Processing and Distribution Center as a
PS-4 Equipment Operator. On or around October 5, 1994, a Supervisor
of Maintenance Operations (Asian male) approached appellant from
behind and delivered what appellant characterized as a "kick" and the
Supervisor referred to as a "tap" on the back of his upper thigh and/ or
"posterior." The Supervisor stated that he and appellant had previously
enjoyed a friendly working relationship and frequently "joked around."
He said he had no intent to hurt appellant and immediately apologized
when he observed that appellant did not find his action humorous.
While appellant claimed no action was taken against the Supervisor
for this incident, the record contains documentation that appellant's
complaint to upper-level management was investigated and, on November
15, 1994, the Supervisor received a seven-day suspension for engaging
in horseplay and kicking appellant.
On June 7, 1995, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against her 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 October 25, 1996, pursuant to 29 C.F.R. �1614.109(e), the AJ issued a
decision without a hearing based on the evidence of record, in which she
concluded that no discrimination had occurred in this matter. In that
decision, the AJ found appellant failed to meet his initial burden
of establishing a prima facie case of race and/or sex discrimination
because there was insufficient evidence that other similarly situated
employees were treated more favorably. Moreover, the AJ concluded that
even if appellant had raised an initial inference of discrimination it was
successfully rebutted by the agency with its articulation of legitimate,
nondiscriminatory reasons for the actions taken. The Supervisor 's
unrebutted explanation was that he was engaged in friendly horseplay.
The record also establishes that upper-level management did not condone
such horseplay and promptly suspended the Supervisor for seven days.
Finally, the AJ held that appellant failed to meet his burden of proving,
by a preponderance of the evidence, that the agency's articulated reasons
for its actions in this matter were unbelievable or that its actions
were more likely motivated by discriminatory factors.
On December 12, 1996, the agency adopted the findings and conclusions
of the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns
no basis to disturb the AJ's finding of no discrimination. Nothing
proffered by appellant on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of
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. � l6l4.604(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. 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:
June 21, 1999
__________________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations